THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 


IH 


REPORTS 


OF 


CASES- 


ADJUDGED   IN 


THE   SUPREME  COURT 


PENNSYLVANIA, 

IN  THE  EASTERN  DISTRICT. 

c  . , 

BY  • 

THOMAS    I.    WHARTON, 

WITH   REFERENCES    TO    CASES   IN    THE  SUBSEQUENT   REPORTS, 

BY 

JOHN    SWORD. 

CONTINUED   BY 

I.    TYSON    MORRIS. 
VOL.  I. 

CONTAINING  THE  CASES  DECIDED  AT  DECEMBER  TERM,  1835, 
AND  MARCH  TERM,  1836. 

PHILADELPHIA : 

T.    &    J.    W.    JOHNSON    &    CO., 
LAW  BOOKSELLERS,  PUBLISHERS  AND  IMPORTERS, 

No.  535  CHESTNUT  STREET. 

1884. 


45 


1835 
1664- 


Entered  according  to  the  Act  of  Congress,  in  the  year  1884, 

By  T.  A  J.  W.  JOHNSON  &  CO., 
in  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


TABLE 


OF  THE 


CONTINUED   ANNOTATIONS 


CASES  REPORTED  IN  THIS  VOLUME. 


IN  the  present  edition  of  Wharton's  Reports,  the  Editor  has  noted  at  the 
end  of  each  case  the  book  and  page  of  any  citation  of  that  case  in  the  subse- 
quent decisions  as  far  as  the  end  of  9  P.  F.  Smith.  To  some  of  the  cases  he 
has  also  added  notes  of  other  subsequent  decisions  involving  the  same  points 
but  containing  no  such  citation. 

J    S 

May  11,  1870. 

The  former  edition  of  Wharton's  Reports  was  annotated  by  Mr.  Sword 
with,  inter  alia,  references  to  the  citations  of  the  cases  in  Wharton  to  be  found 
in  the  reports  down  to  10  Smith  ;  and  to  Acts  of  Assembly.  These  have 
been  continued  by  the  undersigned,  and  include  references  to  such  citations 
in  the  State  Reports  from  10  Smith  to  3d  Outerbridge  and  12  Weekly  Notes 
of  Cases  inclusive.  Being  prepared  too  late  to  be  printed  at  the  end  of  each 
case  in  this  volume,  these  continued  annotations  are  prefixed  here. 

I.  TYSON  MORRIS. 

January  14,  1884,  Philadelphia. 


BEAUMONT'S  CASE,  p.  52. 

A  finding  that  the  person  "  was  an  imbecile  and  had  been  so  since 
her  birth,"  is  bad ;  In  re  Estate  Catharine  Gaul,  7  W.  N.  C.,  522, 
(C.  P.,)  see  Act  13  June,  1836,  P.  L.  592,  Purd.  Dig.,  (ed.  1873,) 
979,  for  the  jurisdiction  and  proceeding  in  lunacy. 

BROWNING  v.  M'MANUS,  p.  177. 

Referred  to  upon  the  point  that  every  presumption  in  favor  of 
the  regularity  of  an  award  is  made  in  the  Supreme  Court ;  Finch 
v.  Lamberton,  12  Smith,  373.  ^And  that  court  will  not  regard 
matter  extrinsic  to  the  record ;  Shisler  v.  Keavy,  25  Id.,  82. 


TABLE  OF  THE  CONTINUED   ANNOTATIONS 

BURCHARD  v.  REES,  p.  377. 

As  to  what  application  of  the  proceeds  a  sheriff,  trespasser  in  sell- 
ing goods,  cannot  claim  in  mitigation  of  damages.     See  Dallain  «-. 
p,  6  W.  A  S.,  323 ;  Carrier  v.  Esbaugh,  20  Smith,  239. 

BURR  r.  SIM,  p.  252. 

Referred  to  as  recognizing  the  principle  of  equitable  conversion  ; 
Evans'  Appeal,  13  Smith,  186.  As  to  an  election  to  reconvert 
operating  as  a  purchase ;  Foster's  Appeal,  24  Id.,  399.  As  to  what 
effects  an  equitable  conversion ;  Jones  v.  Caldwell,  1  Outer-bridge, 
45 ;  s.  c.,  9  W.  N.  C.,  460.  When  there  is  none  the  devisee  is  not 
a  purchaser;  Howard's  Appeal,  11  W.  N.  C.,  412. 

COMMONWEALTH  V.  ALLBURUER,  469. 

Referred  to  as  to  Holmes'  map  and  the  history  of  the  public  right* 
in  the  squares  of  Philadelphia ;  Baird  v.  Rice,  13  Smith,  497,  498. 

COMMONWEALTH  v.  COUNTY  COMMISSIONERS,  p.  1. 
Referred  to  as  to  the  practice  of  issuing  orders  from  the  Quarter 
Sessions  for  the  payment  of  Philadelphia  road  damages;  In  re 
Sedgley  Avenue,  7  W.  N.  C.,  4 ;  where  see  a  review  of  the  legislation 
as  to,  and  the  appropriate  method  of  enforcing  their  payment ;  re- 
ferred to  also  on  same  point  in  dissenting  opinions,  In  re  Kensington 
and  Oxford  Turnpike  Co.,  10  Id.,  185. 

COMMONWEALTH  v.  EARLE,  p.  525. 

The  jury  may,  however,  in  the  case  of  an  alleged  murder  by  poi.-mi. 
Hud  the  accused  guilty  of  murder  in  the  second  degree;  Lane  v. 
Commonwealth,  9  Smith,  371 ;  Schaffner  v.  Commonwealth,  22  Id., 
00,  and  femble  the  degree  must  appear  on  the  record ;  Lane  v.  Com- 
monwealth, supra. 

As  to  sentence  on  a  verdict  "  guilty  in  manner  and  form  as  he 
stands  indicted,"  see  Johnson  v.  Commonwealth,  12  Harris,  386  ; 
and  Act  15  Feb'y,  1870,  §  2,  P.  L.,  15. 

As  to  the  defendant's  right  to  a  writ  of  error  in  capital  cases,  see 
Schoeppe  v.  Commonwealth,  15  Smith,  51 ;  Haines  v.  Common- 
wealth, 11  W.  N.  C.,  289,  and  statutes  there  referred  to;  Act  24 
March,  1877.  §  1,  P.  L.,  40;  Purd.  Dig.,  (ed.  1873,)  2308,  pi.  2. 
As  to  Supreme  Court's  duty  as  to  the  degree  of  the  crime  under  the 
Act  of  1870,  see  Staup  r.  Commonwealth,  24  Smith,  458. 

COMMONWEALTH  v.  KINO,  p.  448. 

As  to  the  effect  of  the  repeal  of  a  statute  upon  a  claim  for  a 
penalty  thereunder,  see  Commonwealth  v.  Standard  Oil  Co.,  12  \V. 
N.  C.,  293. 

COXE  V.  TlLGHMAN,  p.  282.. 

Referred  to  as  to  the  right  to  amend  ;  Meason  v.  Kaine,  17  Smith, 
131  ;  Wilhelm's  Appeal,  29  Id.,  135;  s.  c.,  2  W.  N.  C.,  59. 


TO   THE   CASES   REPORTED    IN   THIS    VOLUME. 

DELAMATEK'S  ESTATE,  p.  362. 

Distinguished  as  being  a  case  of  an  executed  transfer  of  property 
without  fraud ;  Painter's  Estate,  6  Wright,  158. 

Referred  to  as  to  the  grounds  for  the  rescission  of  an  executed 
contract ;  Stephens'  Appeal,  6  Norris,  207 ;  Campbell  v.  Patterson, 
14  Id.,  453. 

As  to  dealings  between  trustees  and  their  cestui  que  trusts,  see 
Dundas'  Appeal,  14  Smith,  325. 

FREYTAG  V;  POWELL,  p.  536. 

This  is  a  District  Court  of  Philadelphia  case ;  see  infra,  p.  471. 
Referred  to  as  to  land  not  appropriable  by  warrant  from  the  land 
office ;  Poor  v.  M'Clure,  27  Smith,  221 ;  and  see  Commonwealth  v. 
Boley,  1  \V.  N.  C.,  303,  where  a  similar  patent  to  Freytag  was 
vacated  by  scire  facias,  fraud  in  Freytag  being  also  alleged. 

FRITZ  v.  THOMAS,  p.  66. 

Referred  to  as  to  a  decedent's  debt  not  being  revived  by  his  ad- 
ministrators' promise  to  pay  ;  Campbell  v.  Fleming,  13  Smith,  244; 
Burt  r.  Herron,  16  Id.,  404;  Stephens  v.  Cotterell,  3  Outerbridge, 
192.  Nor  is  an  executor  personally  liable  on  an  oral  promise  on  the 
mere  consideration  of  assets ;  Act  26  Apr.,  1855,  §  1,  P.  L.,  308 ; 
Okeson's  Appeal,  9  Smith,  99. 

HART  v.  HILL,  p.  124. 

Referred  to  for  the  propositions :  that  the  low  water  mark  is  the 
limit  of  a  grant  with  a  navigable  river  boundary;  Stover  v.  Jack, 
10  Smith,  343 ;  Wood  v.  Appal,  13  Id.,  221.  That  a  fishery  is  a 
place  in  a  river  with  an  incorporeal  easement  on  the  land  of  the 
riparian  owner,  and  may  be  granted  separately  from  the  soil ;  Tini- 
cum  Co.  v.  Carter,  11  Id.,  29,  37,  38,  39,  (and  in  the  Court  below, 
Ibid,  33).  That  a  riparian  owner's  right  to  an  exclusive  fishery  is 
dependent  on  his  compliance  with  the  Acts  of  1804  and  1809  ;  Ibid. 
36,  37  ;  and  see  Harvey  v.  Vandergrift,  1  W.  N.  C.,  629 ;  Common- 
wealth v.  Watson,  8  Luz.  L.  Reg.,  #)5. 

HEPPARD  v.  BEYLARD,  p.  223. 

As  to  a  debtor's  right  to  buy  and  use  as  set-off  a  promissory  note,, 
whereof  his  insolvent  creditor  is  the  maker,  see  McGowan  v.  Bud- 
long,  29  Smith,  470  ;  and  its  limits,  Long  v.  Ins.  Co.,  6  Barr,  421. 

INGHAM  v.  SNYDER,  p.  116. 

Referred  to  in  Missimer  v.  Ebersole,  6  Norris,  110;  s.  c.,  6  W. 
N.  C.,  201 ;  holding  the  issuance  of  and  levy  under  an  alias  fi.  fa. 
of  goods  partially  different  from  those  levied  under  the  original  fi.  fa., 
to  be  an  abandonment  of  such  prior  levy. 

As  to  the  return  of  certain  ^i.  fas.  to  the  second  term,  see  Act  11 
June,  1879,  P.  L.,  122. 


TABLE  OF  THE  CONTINUED   ANNOTATIONS 

KIRKHAM  v.  SHARP,  p.  323. 

Referred  to  as  to  the  want  of  right  in  the  owner  of  a  tenement  to 
surcharge  an  appurtenant  easement ;  Coleman's  Appeal,  27  Smith, 
275 ;  Van  Ohlen's  Appeal,  20  Id..  63 ;  and  see  Carty's  Appeal,  5 
W.  N.  C.,  241.  As  to  an  action  on  the  case  being  a  remedy  for 
obstructing  a  right  of  way  ;  Lindeman  r.  Lindsey,  19  Smith,  102. 

KRIDER  v.  LAFFERTY,  p.  303. 

Referred  to  as  to  what  certainty  of  subject-matter  of  a  deed  is 
necessary  ;  Tryon  r.  Munson,  27  Smith,  259 ;  s.  c.,  1  W.  N.  C.,  541. 
As  to  the  visible  possession  of  land  by  a  third  person  being  notice 
of  his  title  to  a  purchaser ;  Hottenstein  v.  Lerch,  12  W.  N.  C.,  7. 

LANCASTER  v.  DENORMANDIE,  p.  49. 

Followed  as  to  the  proposition  that  an  opinion  filed  in  the  Common 
Fleas,  not  at  the  request  of  either  party  or  counsel,  is  not  a  part 
of  the  record ;  Bartolett  v.  Dixon,  23  Smith,  133.  And  such  re- 
quest must  appear  of  record ;  Alexander  r.  Weidner,  1  Norris,  455  ; 
8.  c.,  3  W.  N.  C.,  245,  (where  see  a  review  of  the  legislation  on  this 
subject).  But  see  Act  24  March,  1877,  §§  1,  2,  P.  L.,  38;  Purd. 
Dig.,  2153,  (ed.  1878,)  which,  however,  is  directory;  Scheuing  v. 
Yard,  7  Norris,  286 ;  and  see  Heiskell  v.  Bank,  8  Id.  155. 

McBRiDE  v.  DUNCAN,  p.  269. 

As  to  special  pleas  averring  facts  provable  under  the  general 
iwue,  see  Biddle  v.  R.  R.,  13  W.  N.  C.,  467,  (C.  P.,)  and  cases  there 
cited  ;  1  Phila.,  178,  (D.  C.,)  3  Id.,  92. 

MCKNIGHT  v.  READ,  p.  213. 

As  to  what  provision  the  Act  of  1833  contemplates  for  an  after- 
born  child,  see  Willard's  Estate,  18  Smith,  327.  Referred  to  as  to 
the  effect  of  probate  of  a  will  pro  tanto  revoked  ;  Hegartv's  Appeal, 
25  Id.,  516. 

McLEOD  v.  LATIMER,  p.  532. 

Stated  in  Brightlv's  Digest  to  apparently  have  been  overruled  by 
Miller's  Estate,  1  Norris,  113;  Brough's  Estate,  21  Smith,  460; 
Graef's  Appeal,  29  Id.,  146.  Sed  Qwzre  f 

McWiLLiAMS  v.  HOPKINS,  p.  276. 

Referred  to  as  to  what  is  not  taxable  as  costs  ;  Caldwell  v.  Miller, 
10  Wright,  235. 

METTS'  APPEAL,  p.  7. 

The  jurisdiction  in  this  case  denied  the  Orphans'  Court  has  been 
supplied  by  subsequent  legislation.  That  court  has  jurisdiction  to 


TO   THE   CASES   REPORTED    IN   THIS   VOLUME. 

make  distribution  of  a  decedent's  estate  in  the  hands  of  executors 
and  administrators,  to  and  among  the  persons,  including  creditors, 
entitled  to  the  same,  and  this  whether  the  estate  be  solvent  or  in- 
solvent ;  and  as  incident  to  this  power,  that  court  can  decide  all  ques- 
tions necessary  to  a  proper  distribution  of  such  fund  ;  Act  16  June, 
1836,  §  19,  P.  L.,  792 ;  Br.  Pur.,  (ed.  1873,)  1104,  pi.  8;  13  Apr., 
1840,  §  1,  P.  L.,  319 ;  Br.  Pur.,  446,  pi.  200  ;  Gochenauer's  Estate, 
11  Harris,  460;  Haminett's  Appeal,  2  Norris,  392,  and  cases  there 
cited  ;  Williamson's  Appeal,  13  Id.,  231  ;  Otterson  v.  Gallagher,  7 
Norris,  355. 

PHILADELPHIA  v.  DAVIS,  p.  490. 

Referred  to  on  the  subject  of  the  asserted  distinction  between  the 
efficiency  of  an  express  and  implied  condition  to  raise  an  election 
in  certain  cases;  Van  Dyke's  Appeal,  10  Smith,  489,  492.  As  to 
the  necessity  in  order  to  apply  the  doctrine  of  equitable  election  of 
a  clearly  expressed  or  necessarily  implied  intention  of  the  testator  ; 
Stokes'  Estate,  11  Id.,  145. 

PHILADELPHIA  LIBRARY  Co.  v,  INGHAM,  p.  72. 

Referred  to  as  to  the  conclusiveness  of  a  judge's  decision  upon  his 
competency  under  the  special  court  acts ;  Philadelphia  v.  Fox,  14 
Smith,  185. 

PULLEN  V.  RlANHARD,  p.  514. 

Referred  to  on  the  subject  of  the  donor's  right  to  control  the 
alienation  of  property  given  a  married  woman  ;  Dodson  v.  Ball,  10 
Smith,  495,  496 ;  and  see  Maurer's  Estate,  5  Norris,  380 ;  Twining's 
Appeal,  1  Outerbridge,  36. 

REDDILL'S  CASE,  p.  445. 

The  Supreme  Court  cannot  discharge  on  Habeas  Corpus  a  person 
imprisoned  by  virtue  of  the  sentence  of  a  court  of  competent  juris- 
diction; Commonwealth  v.  Keeper,  2  Casey,  279.  Nor  will  the 
Supreme  Court  by  such  writ  override  the  statutory  discretion  of  the 
inspectors  to  refuse  a  deduction  of  time  from  the  sentence ;  Common- 
wealth v.  Halloway,  6  Wright,  446.  But  where  a  person  was  duly 
sentenced  and  confined  in  a  work-house  and  was  illegally  discharged 
therefrom  and  was  illegally  re  arrested  and  confined  in  a  county 
jail,  the  Supreme  Court  discharged  him  on  Habeas  Corpus;  Com- 
monwealth v.  Smith,  11  W.  N.  C.,  34. 

REIGART  v.  EHLER,  p.  18. 

The  words  in  the  third  line  from  the  end  of  the  syllabus  "  deed 
of  1829"  should  be  deed  of"  1830." 

In  this  case  there  was  no  sufficient  evidence  that  Ehler  ever  held 
under  Reigart  as  landlord  ;  see  pp.  24,  25. 


TABLE  OF  THE   CONTINUED   ANNOTATIONS. 

ST.  MARY'S  CHURCH  v.  MILES,  p.  229. 


time 

A|l|«;il.      II      C7UJ11II,     •'!_    .        J-lll'l-I     \       V.      1.1III-K     IIKIII.      +*s      -.«.,     »vvr. 

A  release  of  a  ground  rent  is  now  in  certain  cases  to  be  presumed 
from  lapse  of  time;  Act  27  April,  1855,  §  7,  P.  L.,  369;  Br.  Pur., 
(ed.  1873,)  752,  pi.  18. 

SKERRETT  v.  BURD,  p.  246. 

Followed  as  to  the  revocation  of  a  devise  of  real  estate  by  its  con  - 
version  in  testator's  lifetime ;  Pleasants'  Appeal,  27  Smith,  367  ;  s. 
c.,  2  W.  N.  C.,  26. 

TYRON  v.  MILLER,  p.  11. 

Referred  to  in  Conroe  v.  Conroe,  11  Wright,  200,  as  to  amend- 
ments at  Common  IJO.MO  of  the  declaration  being  in  the  discretion  of 
the  court  below ;  see  also  Bailey  v.  Musgrave.  2  S.  &  R.,  219  ;  Cald- 
well  v.  Remington,  2  Wh.,  132;  Burk  v.  Huber,  2  Watts,  306,  313. 
But  the  Supreme  Court  reversed  the  court  below  for  allowing  an 
amendment  to  the  declaration  changing  the  cause  of  action ;  Royse 
v.  May,  12  Norris,  454.  As  to  what  is  not  a  different  cause  of  action, 
see  Schoneman  v.  Fegley ,  7  Barr,  433,  and  cases  there  cited  ;  Knapp 
v.  Hartung,  23  Smith,  290  ;  Wilhelm's  Appeal,  29  Id.,  120.  An 
amendment  shall  not  deprive  the  defendant  of  the  right  to  plead  the 
Statute  of  Limitations  to  the  cause  of  action  ;-  Leeds  v.  Lockwood,  3 
Norris,  73,  and  cases  there  cited  ;  Tyrill  v.  Lamb,  15  Norris,  464. 

UNION  CANAL  Co.  v.  YOUNG,  p.  410. 

Referred  to  as  to  what  is  necessary  to  support  the  plea  of  being  a 
bona  fide  purchaser  for  value  without  notice ;  Fessler's  Appeal,  25 
Smith,  502.  As  to  the  presumption  that  in  taking  land  for  a  canal 
the  fee  is  acquired  ;  Wyoming  Co.  v.  Rice,  31  Id.,  175 ;  s.  c.,  3  W. 
N.  C.,  227  ;  and  see  Defaunce  v.  Brooks,  8  W.  &  S.,  67  ;  Ogden  v. 
Brown,  9  Casey,  247,  that  the  fee  will  pass  in  any  contract  of  sale 
without  words  of  inheritance.  As  to  what  is  not  a  base  fee,  see 
Seebold  v.  Shitter,  10  Casey,  133. 

VANARSDALE  v.  RICHARDS,  p.  408. 

Referred  to  as  to  the  forum  in  which  an  assignee  for  creditors  is 
answerable ;  Holt's  Appeal,  2  Outerbridge,  257  ;  s.  c.,  10  W.  N.  C.. 
549. 

WIMMER'S  APPEAL,  p.  96. 

Referred  to  as  to  the  Orphans  Court's  jurisdiction  in  cases  of  testa- 
mentary trusts ;  Leslie's  Appeal,  13  Smith,  365 ;  Dundas'  Appeal, 
14  Id.,  331,  332.  A  trustee  de  son  tori  is  not  there  accountable; 
Delbert's  Appeal,  2  Norris,  468. 


JUDGES 


DURING  THE  PERIOD  OF  THESE  REPORTS. 


JOHN  BANNISTER  GIBSON,  Esq.,  Chief  Justice. 
MOLTON  C.  ROGERS,  Esq. 

CHARLES  HUSTON,  Esq. 

Justices. 
JOHN  KENNEDY,  Esq. 

THOMAS  SERGEANT,  Esq. 


ATTORNEY  GENERAL. 
JAMES  TODD,  Esq. 


Vlll 


TABLE  OF  CASK. 


M'Williams  v.  Hopkins  275  I 

"          T.         "  276 

Mason  T.  Council  :'>H 

Mayor,  &c.  v.  Davis  490 

Melts'  Appeal      .  7 

Miles,  St.  Mary's  Church  v.  229 

Miller,  Tryon  v.  11 

Moon?  v.  ilnmpton  488 

Murphy,  Richards  v.  185 

N. 

Northern  Liberties,  Spring  Gar- 
den v.  25 

O. 

Odenwelder  v.  Odenwelder  108 

Grain,  Sletor  v.  106 

P. 

Pember's  Case  439 

Philadelphia  v.  Davis  490 

Philad.  Library  Co.  v.  Ingham  72 

Savings  Institution,  Case 

of  461 

Powell,  Freytag  v.  536 

Prescott  v.  Union  Ins.  Co.  399 

Pullen  v.  Rianhard  514 


R. 

Reed,  M 'Knight  v.  218 

Reddill's  Case  445 

Roes,  Bun-hard  v.  377 

Reigart  v.  Ehler  18 

Rianhard,  Pullen  T.  514 

Richards  v.  Murphy,  185 

v.  Vanarsd.ile  408 

Robinson  v.  Woelpper  179 


8. 


Savings  Institution,  Case  of  461 

Sergeant,  Ingersoll  v.  :?:'.? 

Sharp  v.  Thompson  1  :'•'.' 

Kirkham  v.  ::j:) 
Sim,  Burr  v. 

Sims,  Henrv  v.  187 
Skerrejt  v.  liurd  246 
Sletor  v.  Gram  106 
Snyder,  Ingham  v.,  116 
Solomon  v.  Wilson  241 
Spring  Garden  v.  Northern  Lib- 
erties 25 
Stanley,  Britton  v.  267 

T. 

Thomas,  Fritz  v.  66 

Thompson,  Sharp  v.  1 39 

Tilghman,  Coxe  v.  283 

Tryon  v.  Miller  1 1 

U. 

Union  Canal  Co.  v.  Young  410 
Union  Insurance  Co.,  Prescott  v.  399 

V. 

Vanarsdale  v.  Richards  408 


St.  Mary's  Church  v.  Miles  229  ,  Young,  Union  Canal  Co.  v. 


W. 

Walter  v.  Walter  292 

Wentz  v.  Wentz  201 

White  v.  Arndt  91 

Wilmington  Bank  v.  Almond  109 

Wilson,  Solomon  v.  241 

Winmier's  Appeal  96 

Woelpper,  Robinson  v.  179 

Y. 

410 


CASES 

IN 

THE    SUPREME    COURT 

OF 

PENNSYLVANIA. 


EASTERN  DISTRICT— DECEMBER  TERM,  1835. 


[PHILADELPHIA,  DECEMBER  34,  1835.] 

COMMONWEALTH  ex.  rel.  PRICE  and  ROBERTS  against 
THE  COMMISSIONERS  OF  THE  COUNTY  OF  PHILA- 
DELPHIA. 

THE  SAME  ex.  rel.  CLYDE  against  THE  SAME. 

MANDAMUS. 

Mandamus  to  the  Commissioners  of  the  County  of  Philadelphia,  to  draw 
orders  on  the  County  Treasurer  refused,  where  it  appeared  by  the  return 
to  a  rule  to  show  cause  that  there  was  no  money  in  the  County  Treasury, 
applicable  to  the  purpose. 

ON  a  previous  day,  Price,  for  himself  and  Hugh  Roberts  ;  and 
Gr.  L.  Ashmead  for  Thomas  Clyde,  had  obtained  rules  to  show 
cause  why  a  mandamus  should  not  issue  to  the  Commissioners  of 
the  County  of  Philadelphia,  commanding  them  to  draw  orders  on 
the  County  Treasurer  for  the  payment  of  certain  sums  of  money 
alleged  to  be  due  to  the  relators,  under  the  following  circum- 
stances. 

In  consequence  of  the  opening  of  certain  streets  in  the  City 
and  County  of  Philadelphia,  damages  had  been  assessed  pursuant 
to  the  Acts  of  Assembly,  in  favor  of  several  persons  whose  pro- 
perty had  been  taken  away  for  the  purpose.  The  Court  of  Quar- 
ter Sessions  confirmed  the  report,  and  ordered  the  amount 
VOL.  i. — 1 


2  SUPREME  COURT  [Dec.  Term, 

(Price  t>.  County  Commissioners.) 

r*oi  awarded  in  *the  several  cases  to  be  paid  by  the  County 
I  J  Treasurer.  In  the  case  of  Roberts,  it  appeared  by  affi- 
davit, that  application  had  been  made  to  the  County  Commission- 
ers, for  the  necessary  order  on  the  Treasurer,  about  the  8th  of 
April,  and  at  several  subsequent  times.  In  the  case  of  Clyde,  the 
order  of  the  Quarter  Sessions  was  made  on  the  llth  of  December, 
1886 ;  and  application  was  made  forthwith.  The  County  Com- 
missioners declined  compliance  with  the  order  of  the  Quarter  Ses- 
sions, on  the  ground  that  there  were  no  funds  in  the  County 
Treasury  applicable  to  this  purpose. 

And  now,  on  the  return  of  the  rule,  Dallas  for  the  County 
Commissioners,  read  their  affidavit,  setting  forth  in  substance  : 

That  they  had  ascertained  from  the  Treasurer  of  the  County, 
that  there  did  not  exist  at  the  time,  and  had  not  existed  during 
the  current  year,  adequate  funds  for  the  payment  of  the  said  dam- 
ages ;  the  moneys  in  the  Treasury  having  been  applied  to  the 
payment  of  claims  of  a  prior  date,  and  to  the  current  expenses  of 
the  County.  That  the  deficiency  had  arisen  from  circumstances 
beyond  their  control.  Desirous  to  levy  for  the  public  exigencies 
a  sufficient  sum,  at  the  highest  rate  authorized  by  law,  to  wit :  "  at 
the  rate  of  one  cent  in  every  dollar  of  the  adjusted  valuation"  of 
real  and  personal  property,  they  submitted  their  exposition  of  the 
wants  of  the  County  to  "  The  County  Board"  as  they  were 
bound  to  do,  on  the  20th  of  April,  1835,  and  asked  their  consent 
and  approbation  to  the  assessment  of  the  County  rates  and  levies. 
But  the  Board  did  not  assent,  but  restricted  the  assessment  to  the 
rate  of  three-quarters  of  one  cent  on  every  dollar,  making  a  dif- 
ference between  the  sum  which  they  asked  to  be  empowered  to 
raise,  and  the  sum  which  they  were  limited  to,  of  $219,267,  and 
causing  an  estimated  deficiency  for  the  current  year  of  about 
$250,000.  That  they  were  restricted  by  the  act  of  10th  April, 
1834,  entitled  "An  act  for  erecting  the  County  Board,"  &c., 
from  laying  any  tax  or  borrowing  any  money  without  the  consent 
and  approbation  of  the  said  County  Board ;  and  by  a  proviso  in 
the  sixth  section  of  the  same  act,  no  meeting  of  the  said  County 
Board  could  be  held  at  any  time  during  the  session  of  the  legis- 
lature. 

After  setting  forth  particularly  the  state  of  the  County  funds, 
the  return  concluded  thus  : 

"  The  undersigned  do  not  think  it  their  duty,  as  public  agents, 
to  continue  drawing  orders  upon  a  treasury  which  they  know  to 
be  in  effect  empty.  They  have  been  obliged  heretofore,  by  a 
strong  sense  of  the  necessity  of  particular  cases  to  do  so  ;  but  in 
the  exercise  of  the  discretion  with  which  on  this  point  they  deem 
themselves  vested,  they  cannot  continue  the  practice  or  extend  it 
to  a  class  of  cases  of  mere  personal  hardship,  without  subjecting 


1835.]  OF  PENNSYLVANIA.  3 

1 

(M'Carthy  v.  Dawson.) 

the  interests  confided  to  their  supervision  and  care  to  great  dan- 
gers, much  discredit,  and  almost  inextricable  confusion." 

*  G-.  L.  Ashmead  and  Price  contended,  that  the  County  r*o-i 
Commissioners  were  bound  to  draw  orders  according  to  the  L 
period  and  in  the  order  of  time,  at  which  demand  was  made  upon 
them.  In  the  case  of  Price,  demand  was  made  before  the  meet- 
ing of  the  County  Board.  The  County  Commissioners  have  not 
done  all  that  they  might  have  done.  Admitting  that  by  the 
refusal  of  the  County  Board  to  sanction  the  proposed  tax  they 
were  deprived  of  funds,  it  does  not  appear  that  they  were  unable 
to  obtain  their  authority  to  borrow  money.  Our  situation  is  one 
of  great  hardship.  Our  property  has  been  taken  away  from  us  ; 
and  we  have  no  judgment  which  can  be  enforced  under  the  act 
of  15th  April,  1834,  or  under  which  we  may  be  entitled  to  inter- 
est at  a  future  time. 

They  cited  the  act  of  the  twenty-fifth  March,  1835,  (Purd. 
Dig.  802;)  Act  of  tenth  April,  1834,  (Pamph.  Laws,  p.  266.) 

Dallas,  contra,  referred  to  the  case  of  The  Commonwealth  v. 
The  Commissioners  of  Lancaster  County,  (6  Bin.  5.) 

PER  CURIAM.  This  rule  must  be  discharged,  and  the  man- 
damus denied.  It  appears  by  the  affidavit  of  the  Commissioners, 
that  there  is  no  money  in  the  treasury,  except  that  which  is 
wanted  to  defray  the  ordinary  and  current  expenses  of  the 
County.  The  writ  of  mandamus  is  not  of  course.  It  will  be 
granted  when  a  plain  case  of  necessity  is  shown,  and  where,  in 
the  discretion  of  the  Court,  it  appears  to  be  advisable.  In  this 
case  we  should  probably  stop  the  wheels  of  the  county  govern- 
ment if  the  mandamus  were  allowed. 

Rule  discharged. 

Cited  by  Counsel,  9  Harris,  18  ;  4  Casey,  111. 
Cited  by  the  Court,  2  Wharton,  293. 


[*PHILADELPHIA,  DECEMBER  28,  1835.]  [*4] 

M'CARTHY  against  DAWSON,  Executor  of  BAXTER. 

A  testator  having  given  the  residue  and  remainder  of  his  estate,  real  and 
personal,  to  J.  B.,  "his  heirs  and  assigns  forever,"  charged  with  the 
payment  of  debts,  funeral  expenses,  and  certain  small  legacies,  added 
the  following  proviso :  "Provided,  that  in  case  the  said  J.  B.  doth  not 
return  to  Philadelphia,  from  his  present  intended  voyage  to  South  Amer- 
ica, or  in  case  he  doth  not  return  to  Philadelphia  within  a  reasonable 


4  SUPREME  COURT  [Dec.  Term, 

(IfCarthy  r.  Dawson.) 

time  after  my  decease,  but  depart*  this  Itfe  irithmit  lawful  issue,  then,  and 
in  such  cane  or  cases,  all  my  said  messuage,  lot,  and  residuary  estate, 
real  and  personal,  intended  for  the  said  .1.  B.  shall  go  to,  and  I  do  lu-ivl>y 
give,  devise,  and  K'queath  the  same  to  A.  B.,  etc.,  their  heirs  and  assigns," 
subject  to  the  same  charges  :  Held,  that  the  proviso  was  to  be  taken  to 
refer  to  a  dying  without  issue  on  the  contemplated  voyage ;  and  J.  B. 
having  returned  from  the  voyage  in  the  life  time  of  the  testator,  he  took 
a  fee  simple  in  the  real  estate. 

Tins  action  was  tried  before  KENNEDY,  J.,  at  a  Court  of  Nisi 
Prius,  held  at  Philadelphia,  on  the  twenty-seventh  day  of  Febru- 
ary, 1835,  when  a  special  verdict  was  found,  stating  in  substance, 
the  following  facts : 

Mary  Marshall,  of  the  County  of  Philadelphia,  widow,  being 
seized  in  fee  of  a  certain  lot  or  piece  of  ground,  with  messuage 
thereon  erected,  situate  on  the  west  side  of  Delaware  Second 
Street,  between  Shippen  and  South  Streets,  in  the  district  of 
Southwark,  in  the  said  County,  made  her  last  will  and  testament 
in  writing,  dated  the  twenty -fourth  of  October,  1801,  as  fol- 
lows : 

"  Be  it  remembered,  that  I,  Mary  Marshall,  of  the  City  of 
Philadelphia,  widow,  and  relict  of  Joseph  Marshall,  late  of  the 
said  city,  bricklayer,  deceased,  being  of  sound  mind  and  memory, 
do  hereby  make  my  last  will  and  testament  in  manner  following, 
that  is  to  say :  I  will  and  bequeath  all  my  beds,  bedding,  chairs, 
tables,  and  every  other  article  of  my  household  and  kitchen  fur- 
niture, also  all  my  plate  and  all  my  wearing  apparel  unto  my 
beloved  niece,  Rebecca  Cox.  Item. — As  for  and  concerning 
my  dwelling  house  and  lot,  and  all  the  residue  and  remainder  of  my 
estate,  real  and  personal,  whatsoever  and  wheresoever,  not  herein 
otherwise  disposed  of,  I  do  give,  devise  and  bequeath  the  same, 
subject  to  the  provisions,  limitations,  and  conditions  hereinafter 
mentioned,  unto  my  esteemed  friend,  James  Baxter,  of  Philadel- 
phia, now  about  to  go  to  South  America,  his  heirs  and  assigns 
forever,  charged  and  chargeable,  nevertheless,  with  the  payment 
of  all  my  just  debts  and  funeral  expenses,  and  the  costs  of  my 
tomb  stone  for  my  grave — chargeable  also  with  the  payment  of  a 
legacy  or  fund  of  thirty  dollars,  which  I  give  and  bequeath  to 
the  church  wardens  and  vestrymen  of  the  Swedes  Congregation 
i>e-i  >n  Wicaco,  towards  the  purchase  *of  a  bell  for  that  church. 
'  And  chargeable  also  with  the  payment  of  a  legacy  or  fund 
of  fifty-three  dollars,  and  one-third  of  a  dollar,  which  1  give  and 
bequeath  for  the  schooling  and  education  of  Ann  Baxter,  daughter 
of  the  said  James  Baxter's  brother.  Provided  always,  and  it  is 
my  mind  and  will,  that  in  case  the  said  James  Baxter  doth 
•not  return  to  Philadelphia  from  his  present  voyage  to  South 
America,  or  in  case  he  doth  not  return  to  Philadelphia,  within  a 


1835.]  OF  PENNSYLVANIA.  5 

(M'Carthy  v.  Daw  son.) 

reasonable  length  of  time  after  my  decease,  but  departs  this  life 
without  lawful  issue,  then,  and  in  such  case  or  cases,  all  my  said 
messuage,  lot,  and  residuary  estate,  real  and  personal,  intended 
for  the  said  James  Baxter,  shall  go  to,  and  I  do  hereby  give,  de- 
vise, and  bequeath  the  same  unto  my  esteemed  friend,  the  said 
Ann  Baxter,  and  my  nephews,  Peter  Resolve  Cox,  and  Isaac 
Cox,  their  heirs  and  assigns,  to  be  equally  divided  between  them, 
share  and  share  alike,  as  tenants  in  common,  and  not  as  joint 
tenants,  subject,  nevertheless,  to  the  payment  of  my  just  debts 
and  funeral  expenses  as  aforesaid,  and  also,  to  the  payment  of 
the  aforesaid  two  legacies  of  thirty  dollars  and  of  fifty-three  dol- 
lars and  one-third  of  a  dollar ;  and  for  the  payment  of  such  debts 
and  legacies,  I  do  in  such  case  authorize  and  empower  my  execu- 
tors hereinafter  named,  and  the  survivor  of  them  and  the  execu- 
tor of  such  survivor,  to  bargain  and  sell  my  messuage  and  lot, 
with  the  appurtenances,  for  the  best  price  that  can  be  gotten,  and 
by  proper  deeds  and  assurances  in  the  law,  to  grant  and  convey 
the  same,  with  the  appurtenances,  unto  the  purchaser  or  purchas- 
ers, his,  her,  or  their  heirs  and  assigns  forever." 

The  testator  died  seized  of  the  estate,  without  having  revoked 
her  said  will,  which  was  duly  proved  on  the  12th  day  of  Febru- 
ary, 1802.  James  Baxter,  in  the  said  will  mentioned,  returned 
to  Philadelphia  from  the  voyage  to  South  America,  spoken  of  in 
the  will,  before  the  death  of  the  testator,  and  was  resident  in 
Philadelphia  at  the  period  of  her  death. 

The  question  was,  what  estate  he  took  under  the  will. 

Holy  and  F.  Hubbell,  for  the  plaintiff,  contended  that  he  took 
a  fee.  They  argued  that  by  the  true  construction  of  the  will, 
the  estate  in  fee  simple,  which  was  undoubtedly  given  to  James 
Baxter  in  the  first  part  of  the  will,  was  to  be  divested  only  in 
the  event  of  his  dying  while  absent  on  the  contemplated  voyage, 
without  leaving  issue :  and  that  the  words,  "  but  depart  this  life 
without  lawful  issue,"  were  to  be  understood  with  reference  to 
his  absence  abroad,  and  not  as  a  distinct  case.  And  James  Bax- 
ter having  returned  home  in  the  life  time  of  the  testator,  the  es- 
tate became  absolute  in  him.  They  cited  6  Cruise's  Dig.  193. 

C.  Ingersoll,  for  the  defendant,  argued  that  the  words  "  depart 
this  life  without  lawful  issue,"  were  general  in  their  application, 
and  *not  confined  to  the  case  of  absence  on  the  voyage  r*a-\ 
contemplated,  and  consequently,  that  James  Baxter  had  *• 
only  an  estate  in  tail.  He  cited  Irvine  v.  Dunwoody,  (17  S.  & 
R.  61)  ;  Caskey  v.  Brewer,  (17  S.  &  R.  441)  ;  Baker  v.  Grerrish, 
(5  Rawle  ) ;  1  Powel  on  Devises,  361,  363,  364,  n.,  (ed. 
1827.) 


6  SUPREME  COURT  [Dec.  Term, 

(M*Carthy  «.  Dawson.) 

The  opinion  of  the  Court  was  delivered  by 

GIBSON,  C.  J. — The  argument  is,  that  however  else  the  devise 
to-  the  first  taker  may  have  limited  the  estate,  he  could  in  no 
event  have  .had  a  fee  simple,  the  provision  for  his  death  without 
issue  having  limited  it  as  a  fee  tail  by  implication;  and  that 
there  being  a  particular  estate  of  freehold  to  support  the  limita- 
tion over  as  a  remainder,  it  is  not  to  be  construed  an  executory 
devise.  It  is  obvious,  however,  that  a  general  failure  of  issue 
was  not  the  contingency  that  was  uppermost  in  the  mind  of  the 
testatrix ;  and  that  it  was  contemplated  by  her  but  in  connection 
with  a  failure  to  return  in  a  reasonable  time  from  the  voyage  to 
South  America.  The  devisee  was  a  bachelor,  about  to  proceed 
on  a  long  sea-voyage,  in  which,  should  he  perish,  it  was  scarce 
possible  that  he  could  leave  lawful  issue ;  and  the  contingency  of 
his  death,  would  therefore  present  to  the  testatrix  the  idea  of  a 
dying  necessarily  without  issue.  It  was  therefore,  of  a  dying 
without  issue  on  that  voyage,  of  which  she  spoke.  She  viewed 
the  contingency  for  which  she  was  going  to  provide,  but  in  two 
aspects — of  a  return  to  Philadelphia  in  a  reasonable  time,  or,  as 
the  only  other  alternative,  death  without  issue  abroad.  "Pro- 
vided always,  and  it  is  my  will  and  intention,"  are  her  words, 
"  that  in  case  the  said  James  Baxter  doth  not  return  to  Philadel- 
phia from  his  present  intended  voyage  to  South  America,  or  in 
case  he  doth  not  return  to  Philadelphia  in  a  reasonable  time  after 
my  death,  BUT  depart  this  life  without  lawful  issue  ;"  then  over. 
To  avoid  the  preceding  conclusion,  we  are  asked  to  put  "or"  in 
the  place  of  "  but,"  and  thus  make  the  dying  without  issue  a  dis- 
tinct and  independent  contingency.  The  word  "or"  has  doubtless 
been  construed  "and ;"  not,  however,  where  it  was  not  indispens- 
able to  some  plain  point  of  intention ;  and  what  object  which  the 
testatrix  may  be  thought  to  have  in  view,  is  there  to  be  answered 
by  the  mutation  desired  here  ?  She  evidently  thought,  that  Cap- 
tain Baxter  would  return  without  issue,  or  perish  on  his  voyage 
without  issue ;  the  requirement  of  his  presence  at  home  in  a 
reasonable  time  after  her  death,  being  to  let  the  estate  go  over 
on  a  reasonable  presumption  of  his  death.  The  leaving  of  issue 
abroad  was  a  contingency  not  contemplated ;  or  if  contemplated, 
the  object  was  to  bring  him  back  to  enjoy  the  estate  at  home, 
instead  of  suffering  it  to  go,  at  perhaps  an  indefinite  time,  to  his 
offspring  by  a  stranger,  for  whom  she  felt  no  affection.  That 
being  accomplished,  it  is  evident  she  meant  no  restricted  gift.  It 
I-**-!  is  of  weight  that  the  devise  is  in  fee  by  express  *words; 
••  and  though  the  generality  of  such  words  may  be  restrained 
by  implication,  it  never  has  been  done  but  to  effect  some  clear 
purpose,  palpably  in  the  testator's  view.  No  such  purpose  is 
perceptible  here,  for  the  estate  is  given  pretty  much  in  the  same 


1835.]  OF  PENNSYLVANIA.  7 

(Metts'  Appeal.) 

words  and  with  the  same  encumbrances,  as  it  is  given  to  the  de- 
visees over,  who  were  certainly  intended  to  have  a  fee.  On  the 
face  of  the  will,  then,  there  is  a  manifest  intent  to  give  the  estate 
absolutely  if  at  all,  and  to  limit  a  fee  to  the  first  taker,  provided 
he  returned  to  take  possession  of  it  in  a  reasonable  time  from 
the  death. 

Judgment  for  the  plaintiff. 
Cited  by  Counsel,  7  Watts  &  Sergeant,  97. 


[PHILADELPHIA,  DECEMBER  28,  1835.  ] 
METTS'  APPEAL. 

The  Orphans'  Court  has  not  jurisdiction  of  an  adversary  claim  against  the 
estate  of  a  decedent,  where  the  estate  is  solvent ;  although  the  alleged 
creditors  are  children  of  the  decedent. 

APPEAL  from  the  Orphans'  Court  for  the  County  of  Philadel- 
phia, in  the  case  of  the  settlement  of  the  accounts  of  George 
Metts,  Executor  of  the  Will  of  Barbara  Metts,  deceased. 

Adam  Metts  died  about  the  year  1797,  intestate,  seized  of  a 
dwelling-house  and  lot  of  ground,  situate  in  the  Northern  Liber- 
ties, of  the  City  of  Philadelphia,  and  leaving  a  widow  and 
several  minor  children.  His  widow,  Barbara  Metts,  remained 
in  possession,  and  made  some  addition  to  the  building.  In  the 
year  1827,  it  became  necessary  to  occupy  a  great  part  of  the  lot 
for  the  purpose  of  a  public  street ;  and  under  the  provision  of 
the  Act  of  Assembly,  a  jury  was  appointed  by  the  Court  of 
Quarter  Sessions,  who  assessed  the  damages  at  1400  dollars.  On 
the  return  of  the  jury  a  commissioner  was  appointed  to  ascertain 
the  liens  upon  the  property,  &c.,  who  reported  that  the  damages 
were  payable  to  Barbara  Metts.  No  exception  having  been  made 
to  this  report,  it  was  confirmed  by  the  Quarter  Sessions,  and  the 
money  was  paid  accordingly.  Barbara  Metts  died  in  1830,  hav- 
ing by  her  last  will  and  testament  bequeathed  the  sum  of  30 
dollars  to  each  of  her  children,  with  the  exception  of  her  son, 
George  Metts,  to  whom  she  gave  all  the  residue  of  her  estate, 
and  Avhom  she  appointed  executor. 

George  Metts  settled  his  accounts  in  1831,  in  which  he  charged 
himself  with  the  sum  awarded  for  opening  the  streets,  deducting 
a  certain  amount  claimed  by  the  ground  landlord. 

*In  the  Orphans'  Court,  the  accounts  were  referred  to  an  r^o-i 
auditor,  who  after  stating  the  circumstances  concluded  as  L 
follows: — 


8  SUPREME  COURT  [Dec.  Term, 

(Mette'  Appeal.) 

"  The  auditor  is  clearly  of  opinion  that  the  use  and  occupation 
of  the  house  and  lot  for  so  many  years  by  Barbara  Metts,  was  a 
family  arrangement,  acquiesced  in  by  her  children  for  her  conve- 
nience and  comfort  ;  and  that  her  enjoyment  of  the  whole  property 
was  at  least  an  equivalent  for  the  improvements  and  repairs  made, 
and  the  ground  rent  and  taxes  paid  by  her.  That  the  children 
never  lost  the  legal  title  to  the  property.  That  when  their 
mother  received  the  money  in  question,  she  was  to  be  regarded 
as  trustee  for  all  interested ;  that  her  executor,  in  whose  hands 
the  fund  now  is,  is  to  be  considered  also  as  a  trustee,  and  that 
(the  question  of  the  testatrix's  interest  in  third  part  being  now 
at  an  end)  distribution  is  to  be  made  accordingly." 

The  report  of  the  auditor  having  been  confirmed  by  the  Or- 
phans' Court,  the  Executor  appealed  to  this  Court. 

Arundel,  for  the  appellant  contended: 

1 .  That  Ann  Metts  was  entitled,  in  her  character  of  occupant, 
to  receive  the  damages  awarded  by  the  jury,  to  her  proper  and 
absolute  use  ;  and,  therefore,  she  was  entitled  to  dispose  of  them 
by  will  or  otherwise  as  she  thought  fit. 

2.  That  the  decree  or  judgment  of  the  Court  of  Quarter  Ses- 
sions awarding  the  damages  to  Ann  Metts,  was  conclusive  upon 
the  question  of  her  absolute  right  to  it. 

On  this  side  were  cited  Purdon's  Digest,  726,  (Act  of  1802)  ; 
Marsh  v.  Pier,  (4  Rawle,  273)  ;  Kesaler  v.  Kessler,  (2  Watts, 
323). 

Campbell  and  Isaac  Norris,  for  the  appellees. 

This  is  an  attempt  by  one  of  several  children  to  get  possession 
of  an  undue  proportion  of  the  common  property.  The  widow, 
it  is  tnie,  occupied  the  whole  of  the  real  estate  in  question,  from 
the  time  of  the  death  of  her  husband,  until  it  was  taken  for  the 
street ;  but  it  was  in  pursuance  of  a  family  arrangement,  and  as 
guardian,  or  trustee  for  her  minor  children.  As  a  mere  occu- 
pant, she  could  not  have  been  entitled  to  damages  under  the  Act 
of  1802. 

[ROGERS,  J. — How  could  you  enforce  your  claim  in  the  Or- 
phan** Court?] 

We  claimed  as  creditor*  of  Mrs.  Metts'  estate. 
r*Q"|         [*Ror.ERS,  J. — But  your  claim  was  disputed  ;  and  it  is 
not  easy  to  see  that  the  Orphans'  Court,  or  an  auditor 
had  any  jurisdiction  in  such  case.] 

It  is  a  common  practice  here  to  refer  all  questions  arising 
upon  the  accounts  of  an  executor  or  administrator  to  an  auditor, 
who  hears  and  decides  as  well  upon  claims  of  creditors,  as  upon 
those  of  distributees,  subject  to  the  control  of  the  Orphans'  Court, 
who  may  direct  an  issue  for  the  trial  of  disputed  facts. 


1835.]  OF  PENNSYLVANIA.  9 

(Metts'  Appeal.) 

[KENNEDY,  J. — There  is  no  authority  for  the  practice,  except 
in  the  case  of  an  insolvent  estate,  for  which  there  is  a  special  pro- 
vision made  by  the  Act  of  1794.] 

W.  M.  Meredith,  in  reply,  was  stopped  by  the  court ;  whose 
opinion  Avas  delivered  by 

ROGERS,  J. — The  account  of  the  executor  exhibits  a  balance 
in  his  hands  of  1038  dollars  56  cents  ;  and  the  only  question  is, 
as  to  the  distribution  of  this  fund.  And  this  would  seem  to  pre- 
sent a  case  of  but  little  difficulty,  as  there  can  be  no  doubt,  that 
after  debts  and  the  necessary  expenses  of  settling  the  estate  are 
paid,  the  surplus  must  be  paid  as  is  directed  in  the  testator's  will. 
But  the  appellees  say,  and  so  the  Orphans'  Court  has  decreed, 
that  they  are  entitled  to  the  balance  in  the  hands  of  the  executor, 
because,  the  testatrix  in  her  life  time,  received  from  the  treasury 
of  the  County  of  Philadelphia,  by  the  hands  of  her  son  and  agent, 
George  Metts,  the  sum  of  1400  dollars,  for  damages  in  opening 
Juliana  street,  through  property  occupied  by  her.  That  at  the 
time  of  her  death,  in  September,  1830,  this  money  was  still  in 
the  hands  of  her  son,  George  Metts,  who  was  appointed  her  exe- 
cutor :  that  the  property,  for  the  injury  to  which  these  damages 
were  receiv.ed,  belonged  equally  to  the  ten  children  of  Adam 
Metts,  and  that  the  money  was  received  in  trust  for  their  benefit. 
Admitting  the  facts  to  be  as  stated,  was  it  competent  for  the  Or- 
phans' Court  to  make  a  decree  distributing  the  assets  equally 
among  the  children  of  Adam  Metts  ?  And  we  are  clearly  of  the 
opinion,  it  was  not. 

If  Barbara  Metts  received  the  money  as  is  alleged,  not  in  her 
own  right  solely,  but  as  a  trustee  for  her  children,  it  was  so  much 
money  had  and  received  for  their  use,  and  this  would  make  them 
creditors  of  their  mother,  for  the  amount  of  their  respective  sharest 
for  which  an  action  for  money  had  and  received  would  lie.  Bu, 
if,  as  has  been  supposed,  George  Metts  was  a  trustee  for  them, 
then  the  act  of  Assembly  gives  them  a  remedy,  by  a  more  sum- 
mary proceeding  in  the  Court  of  Common  Pleas.  But  in  neither 
view  of  the  case  have  the  Orphans'  Court  authority  to  disregard 
the  injunction  of  the  will,  and  make  a  decree  such  as  the 
present. 

*It  must  be  recollected,  that  the  estate  is  solvent,  and  r-^-j  ^-, 
of  course,  is  not  embraced  by  the  14th  section  of  the  act  *- 
of  the  19th  April,  1794,  which  relates  to  cases  where  there  are 
not  assets  sufficient  to  pay  bonds,  specialties,  and  other  debts. 
This  section  was  intended  for  the  security  of  executors  and 
administrators,  but  we  do  not  understand  that  in  this  case,  the 
executor  claims  the  benefit  of  this  provision,  or  that  auditors  were 
appointed  under  that  section. 


10  SUPREME  COURT  [Dec.  Term, 

(Try on  t>.  Miller.) 

But  this  docs  not  leave  the  appellees  without  an  adequate 
remedy,  as  has  been  before  intimated.  The  executor  is  respon- 
sible for  the  correct  and  proper  administration  of  the  estate,  and 
if  he  thinks  proper  to  prefer  legacies  to  debts,  it  is  a  devastavit 
for  which  he  is  personally  liable.  It  is  all  important  to  the  ad- 
ministration of  justice,  that  the  jurisdiction  of  the  respective  courts 
should  be  kept  separate  and  distinct ;  but  it  is  obvious,  that  if 
such  a  course  of  procedure  should  be  permitted,  it  would  interfere 
with  the  trial  bv  jury,  to  the  benefits  of  which  the  executor,  as 
well  as  the  creditor,  is  entitled.  We  wish  it  to  be  understood, 
that  we  give  no  opinion  on  what  may  be  considered  the  merits  of 
the  case,  but  shall  leave  these  questions  to  be  determined  where 
they  properly  arise. 

Decree  of  the  Orphans'  Court  distributing  the  balance  among 
the  ten  children  of  Adam  Metts  reversed.  The  balance  to 
be  paid  by  the  executor  as  is  directed  by  the  will,  upon 
the  legatees  giving  security,  &c.,  according  to  law.  The 
record  remanded  to  the  Orphans'  Court,  to  carry  this 
decree  into  execution. 

Cited  by  Counsel,  9  Watts,  875  ;  8  Watts  &  Sergeant,  403  ;  10  Barr,  144; 

11  Harris,  462  ;  6  Casey,  80. 

Cited  by  the  Court,  2  Ashmead,  522. 

To  the  same  effect,  2  Wharton,  295  ;  6  Id.  403  ;  5  Watts,  50. 

This  seems  to  be  changed  by  later  Acts  of  Assembly  :  see  5  Wharton,  44; 
5  Harris,  422 ;  11  Id.  460 ;  12  Id.  288 ;  1  Casey,  215 ;  4  Id.  262 ;  6  P.  F. 
Smith,  172. 


[*H]  [*PHII.ADELPHIA,  DECEMBER  28,  1835.] 

TRYON  and  Others  against  MILLER  and  Others. 

IN   ERROR. 

1.  A  plaintiff  having  declared  in  trover  for  a  bond,  the  case  was  referred, 
under  the  act  of  1810,  to  arbitrators,  who  made  an  award  in  favor  of  the 
plaintiff,  from  winch  the  defendant  appealed :  Held,  that  the  Court  below 
waa  right  in  refusing  the  plaintiff  leave  to  withdraw  the  original  decla- 
ration, and  substitute  one  alleging  the  conversion  to  have  been  of  certain 
instrument*  of  writing  not  under  seal. 

2.  It  Mfmt,  that  such  an  amendment  being  the  substitution  of  a  different 
cause  of  action  from  that  originally  stated,  is  not  within  the  act  of  1806, 
and  therefore  it  is  discretionary  with  the  Court  to  which  it  is  offered  to 
admit  or  reject  it ;  and  their  decision  in  relation  to  it  is  not  subject 
to  revision  upon  a  writ  of  error. 

8.  A  plaintiff  in  trover  for  certain  instruments  of  writing  having,  while  the 
cause  was  before  arbitrators,  filed  with  them  an  agreement  to  release  any 
judgment  in  his  favor,  upon  certain  terms,  which  agreement  was  at- 
tached by  the  arbitrators  to  their  report.  It  was  held,  that  the  plaintiff 
could  not,  upon  the  trial  of  the  cause  after  an  appeal,  read  the  agreement 
to  the  jury. 


1835.]  OF  PENNSYLVANIA.  11 

(Tryon  •».  Miller.) 

UPON  a  writ  of  error  to  the  District  Court  for  the  City  and 
County  of  Philadelphia,  the  case  was  as  follows. 

To  September  term,  1834,  an  action  on  the  case  was  brought 
by  George  Try  on,  Nathan  Jones,  John  Alberger,  Joseph  B.  Nor- 
bury,  and  Joseph  Starne,  against  Daniel  H.  Miller,  Lawrence 
Shuster,  David  Woelpper,  and  Jacob  Frick,  under  the  following 
circumstances : 

In  the  year  1822,  Jacob  G.  Tryon  was  elected  sheriff  of  the 
City  and  County  of  Philadelphia.  The  plaintiffs  became  his 
sureties  in  the  recognizance  to  the  Commonwealth  in  the  sum  of 
$60,000.  The  defendants,  together  with  certain  other  friends  of 
Mr.  Tryon,  were  alleged  to  have  entered  into  certain  written 
stipulations  to  indemnify  the  plaintiffs  for  any  loss  by  reason  of 
their  suretyship.  The  agreements  of  indemnity,  however,  were 
never  delivered  to  the  plaintiffs,  but  remained  in  the  possession 
of  the  defendants,  or  one  of  them.  Mr.  Tryon  died  insolvent 
within  a  year  after  his  appointment ;  and  the  plaintiffs  were  com- 
pelled to  pay  certain  sums  for  which  he  was  in  default,  in  pur- 
suance of  the  stipulations  in  the  recognizance. 

On  the  sixteenth  of  October,  1824,  a  declaration  was  filed  as 
follows : 

In  the  District  Court  for  the  City  and  County  of  Philadelphia, 
of  the  Term,  of  September,  1824,  No.  182,  Philadelphia  City  and 
County,  88.: 

Daniel  H.  Miller,  Lawrence  Shuster,  Daniel  Woelpper,  and 
Jacob  Frick,  all  late  of  the  County  aforesaid,  yeomen,  were  at- 
tached to  answer  George  Tryon,  Nathan  Jones,  John  Alberger, 
Joseph  *Starne,  and  Joseph  B.  Norbury,  of  a  plea  of  tres-  r-^-.  0-1 
pass  on  the  case,  &c.  Whereupon  the  said  George  Tryon,  L 
Nathan  Jones,  John  Alberger,  Joseph  Starne,  and  Joseph  B. 
Norbury,  by  William  M.  Meredith,  their  attorney,  complain,  for 
that  whereas,  the  said  George,  Nathan,  John,  Joseph,  and  Joseph 
B.  heretofore,  to  wit,  on  the  first  day  of  March,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  twenty-three,  at  the 
County  of  Philadelphia,  to  wit,  at  the  City  and  County  aforesaid, 
were  lawfully  possessed,  as  of  their  own  property,  of  a  certain 
writing  obligatory,  commonly  called  a  bond,  sealed  with  the  seals 
of  the  said  Daniel  H.  Miller,  Lawrence  Shuster,  Daniel  Woelpper, 
Jacob  Frick  and  others,  whereby  the  said  Daniel  H.  Miller,  Law- 
rence Shuster,  David  Woelpper,  Jacob  Frick  and  others,  became 
bound  to  the  said  George  Tryon,  Nathan  Jones,  John  Alberger, 
Joseph  Starne,  and  Joseph  B.  Norbury,  in  a  certain  penal  sum 
therein  named,  and  then  and  still  being  in  full  force ;  of  great 
value,  to  wit,  of  the  value  of  twenty  thousand  dollars,  lawful 
money  of  the  United  States ;  and  being  so  possessed,  they,  the 
said  George,  Nathan,  John,  Joseph,  and  Joseph  B.,  afterwards, 


12  SUPREME  COURT  [Dec.  Term, 

(Tryonu.  Miller.) 

to  wit,  on  the  day  and  year  last  aforesaid,  at  the  County  of  Phil- 
adelphia, to  wit,  at  the  City  and  County  aforesaid,  casually  lost 
the  said  bond  out  of  their  possession,  and  the  same  afterwards,  to 
wit,  at  the  City  and  County  aforesaid,  on  the  day  and  year  last 
aforesaid,  at  the  County  of  Philadelphia,  to  wit,  came  to  the  pos- 
session of  the  said  Daniel  II.  Lawrence,  David  and  Jacob,  by  find- 
ing; yet  the  said  Daniel  II.  Lawrence,  David  and  Jacob,  well 
knowing  the  said  bond  to  be  the  property  of  the  said  George, 
Nathan,  John,  Joseph,  and  Joseph  B.,  and  of  right  to  belong  and 
appertain  to  them,  but  contriving  and  fraudulently  intending  to 
deceive  and  defraud  the  said  George,  Nathan,  John,  Joseph,  and 
Joseph  B.,  in  this  behalf,  have  not  as  yet  delivered  the  said  bond 
to  the  said  George,  Nathan,  John,  Joseph,  and  Joseph  B.,  or  to 
any  or  either  of  them,  although  often  requested  so  to  do,  and 
have  hitherto  wholly  refused  so  to  do,  and  afterwards,  to  wit,  on 
the  day  and  year  last  aforesaid,  at  the  County  of  Philadelphia,  to 
wit,  at  the  City  and  County  aforesaid,  converted  and  disposed  of 
the  said  bond  to  their  own  use  ;  wherefore  the  said  George, 
Nathan,  John,  Joseph,  and  Joseph  B.,  say  that  they  are  injured 
and  have  sustained  damage  to  the  value  of  fifty  thousand  dollars, 
and  therefore  they  bring  their  suit,  &c. 

SAMSON  LEVY,  ) 

W.  M.  MEREDITH,      f  P™  ^uer' 

The  cause  was  referred  by  the  plaintiff  according  to  the  act  of 
1810;  and  an  award  was  filed  on  the  twenty-sixth  of  December, 
1825,  in  favor  of  the  plaintiff,  against  Daniel  H.  Miller,  for  the 
sum  of  $10,000;  and  as  against  the  other  defendants  the  arbitra- 
T*1S1  *ors  *rcPortcd,  that  the  plaintiffs  had  no  cause  of  action. 
'  On  the  same  day  the  following  paper  was  filed  by  the 
plaintiffs : 

It  is  hereby  agreed  by  the  plaintiffs,  that  if  an  award  shall  be 
made  in  their  favor,  the  same,  and  the  judgment  thereon  to  be 
rendered,  shall  be  released,  upon  payment  by  the  defendants  of 
all  that  the  plaintiffs  have  paid  and  may  hereafter  be  compelled 
to  pay,  by  reason  of  their  having  been  sureties  for  the  late  Jacob 
G.  Tryon,  sheriff  of  the  County  of  Philadelphia,  and  that  upon 
payment  by  the  defendants  of  all  sums  of  money,  which  the 
plaintiffs  have  paid  and  may  hereafter  be  compelled  to  pay,  the 
judgment  in  this  case  shall  be  released. 

(Signed)  GEORGE  TRYON, 

JOHN  ALBERGER, 
NATHAN  JONES, 
JOSEPH  STARNE, 
JOSEPH  B.  NORBURY. 
December  22  J,  1826. 


1835.]  OF  PENNSYLVANIA.  13 

(Tryon  0.  Miller.) 

Daniel  H.  Miller  appealed  from  the  award.  On  the  fourth  of 
November,  1826,  on  motion  of  his  counsel,  the  Court  granted  a 
rule  to  the  plaintiffs  to  show  cause  "  why  upon  the  payment  of 
the  costs  and  surrender  up  by  him  to  the  plaintiffs,  without  pre- 
judice to  the  rights  of  any  person  or  persons,  a  certain  paper 
writing,  dated  the  day  of  October,  1822,  purporting  to  be  an 
agreement  to  indemnify  the  plaintiffs  to  the  amount  of  certain 
sums  set  opposite  to  the  names  of  the  subscribers,  and  signed  by 
George  W.  Try  on,  and  seventeen  others,  and  also  a  certain  paper 
writing  purporting  to  be  an  agreement  to  indemnify  Nathan 
Jones,  George  Tryon,  and  William  Law,  dated  the  day  of 
October,  1822,  signed  by  various  persons,  most  of  whose  names 
are  cancelled,  this  suit  should  not  be  discontinued  and  proceed- 
ings stayed."  After  argument  the  Court  discharged  this  rule  on 
the  eleventh  December,  1826.  On  the  next  day  the  following 
entry  appears: 

Dec.  12, 1826.  A  certain  paper  writing,  dated  the  day  of 
October,  1822,  purporting  to  be  an  agreement  to  indemnify  the 
plaintiff  to  the  amount  of  certain  sums  set  opposite  to  the  sub- 
scribers' names,  and  signed  by  George  W.  Tryon  and  seventeen 
others,  filed ;  and  also  a  certain  paper  writing  purporting  to  be 
an  agreement  to  indemnify  Nathan  Jones,  George  Tryon,  and 
William  Law,  dated  October,  1822,  signed  by  various  per- 
sons, most  of  whose  names  are  cancelled,  and  also  a  notice  signed 
by  Thomas  Sergeant  and  J.  A.  Mahany,  Esq.,  defendant's  attor- 
neys, dated  Philadelphia,  December  12th,  1826,  directed  to  the 
plaintiffs  or  their  attorneys,  informing  them  of  the  filing  of  the 
above  papers,  &c. 

*On  the  twenty-fourth  of  March,  182T,  on  motion  of  the  r^-j^-i 
plaintiff's  counsel,  a  rule  was  granted  to  show  cause  why  an  ^  J. 
amended  declaration  therewith  offered,  should  not  be  filed,  and  also, 
why  the  declaration  already  filed  should  not  be  struck. off.  The  de- 
claration thus  proposed  did  not  appear  upon  the  record.  It  was 
agreed,  however,  in  the  argument,  that  it  differed  from  the  former 
declaration  in  respect  to  the  instruments  alleged  to  be  in  the  pos- 
session of  the  defendants, — stating  them  as  agreements  or  stipula- 
tions and  not  as  bonds.  The  District  Court  being  divided  in  opin- 
ion upon  the  question,  the  rule  was  not  granted. 

The  case  then  went  to  trial  upon  the  original  declaration,  when 
the  plaintiff,  to  support  the  averments  therein,  offered  in  evidence 
the  agreements  filed  by  the  defendants,  which  the  Court  refused 
to  admit ;  and  under  their  direction  the  jury  rendered  a  verdict 
for  the  defendants ;  and  the  plaintiffs  having  removed  the  record 
to  this  Court  assigned  for  error: 

1.  The  refusal  to  allow  the  agreement  above  mentioned  to  be 
read  in  evidence. 


14  SUPREME  COURT  [Dec.  Term, 

(Tryon  «.  MUler.) 

2.  The  refusal  to  permit  the  proposed  amendment  of  the  decla- 
ration. 

The  case  was  argued  by  CJiarles  Ingersoll,  for  the  plaintiff  in 
error,  who  contended  that  the  Court  ought  to  have  allowed  the 
amendment  to  the  declaration.  He  cited  2  Chitty,  835. 

Dallat,  (with  whom  was  Randall,}  for  the  defendant  in  error, 
was  stopped  by  the  Court. 

The  opinion  of  the  Court  was  delivered  by 

KENNEDY,  J. — Two  errors  have  been  assigned, — First,  that 
the  District  Court  refused  to  permit  the  plaintiffs  to  read  in 
evidence  to  the  jury,  on  the  trial  of  the  cause,  an  offer  made  in 
writing  and  signed  by  them  while  the  cause  was  pending  before 
arbitrators,  and  afterwards  filed  in  the  prothonotary's  office,  with 
and  attached  to  the  award  of  the  arbitrators ;  whereby  they 
agreed  that  if  an  award  should  be  made  in  their  favor,  the  same 
and  the  judgment  thereon  to  be  rendered,  should  be  released  upon 
payment  by  the  defendants  of  all  that  the  plaintiffs  had  paid  and 
might  thereafter  be  compelled  to  pay,  by  reason  of  their  having 
been  sureties  for  the  late  Jacob  G.  Tryon,  sheriff  of  the  County 
of  Philadelphia,  and  that  upon  payment  by  the  defendants  of  all 
sums  of  money,  which  the  plaintiffs  had  paid  and  might  thereafter 
be  compelled  to  pay,  the  judgment  in  this  case  should  be  released ; 
second,  that  the  court  also  refused  to  permit  the  plaintiffs  to  with- 
draw the  declaration  filed  by  them  and  to  file  a  new  one  then 
exhibited  to  the  court. 

In  regard  to  the  first  error  it  is  difficult,  if  not  impossible,  to 
r*ir-i  perceive  *even  a  colorable  reason  tending  to  show  that 
'  the  writing  ought  to  have  been  received  in  evidence.  It 
being  the  mere  act  of  the  plaintiffs,  and  not  assented  to  by  the 
defendant,  it  cannot  be  pretended  that  it  ought  to  have  been 
received  as  evidence  for  the  purpose  of  sustaining  the  plaintiff's 
claim.  So  if  it  were  offered  with  a  view  to  persuade  the.jury  to 
give  a  verdict  in  favor  of  the  plaintiffs,  when  the  jury  might 
otherwise  have  thought  that  their  right  was  not  clearly  estab- 
lished by  the  evidence ;  or  in  hopes  that  the  jury  might  thereby 
be  induced  to  assess  damages  in  their  favor  beyond  what  the 
evidence  given  would  warrant:  under  either  of  these  views, 
it  W1B  clearly  improper  and  inadmissible.  It  seems  to  me  that 
there  would  have  been  as  much,  if  not  more  propriety,  in  having 
offered  the  award  of  the  arbitrators  in  evidence ;  which  if  it  had 
been  received,  after  objection  by  the  defendant,  would  have  been 
error  on  the  part  of  the  court,  according  to  the  case  of  Shaeffer 
v.  Kreitzer,  6  Binn.  430.  I  really  can  perceive  no  motive  for 


1835.]  OF  PENNSYLVANIA.  15 

(Tryonc.  Miller.) 

the  plaintiffs  having  wished  to  give  their  paper  in  evidence,  unless 
it  were  for  the  purpose  of  inducing  the  jury  to  give  then;  a  more 
favorable  verdict,  than  from  the  evidence  given  and  the  law  on 
the  subject  they  had  a  right  to  claim.  But  surely  nothing  can 
be  more  plain  than  that  it  was  the  duty  of  the  jury  to  give  their 
verdict  according  to  the  law  and  the  evidence,  and  conse- 
quently it  would  have  been  error  in  the  court  to  have  misdi- 
rected the  jury  in  point  of  law,  or  to  have  suffered  that  to  have 
been  given  to  them  which  might  have  misled  them,  either  in 
regard  to  the  law  or  the  facts  of  the  case.  It  is  well  observed 
by  Mr.  Justice  Sergeant,  who  delivered  the  opinion  of  this 
Court  in  Bellas  v.  Lloyd,  2  Watts,  204,  that  "  the  permission  to 
a  party  to  file  papers  during  a  trial,  affecting  the  event  of  the 
matters  in  issue,  may  lead  to  great  irregularities  and  abuse.  It 
may  enable  him  to  vary  the  position  of  the  cause,  by  an  act  of 
his  own,  possessing  no  defined  character,  involving  no  legal  re- 
sponsibility, and  taking  the  opposite  party  by  surprise.  It  tends 
to  embarrass  the  regular  course  of  trial.  It  is  the  duty  of  the 
court  to  discountenance  a  practice  of  this  kind,  and  it  is  error  for 
which  the  judgment  will  be  reversed,  if  exception  is  taken  to  it 
at  the  time  of  being  offered,  or  when  sanctioned  by  the  court." 
The  first  error,  therefore,  is  not  sustained. 

As  to  the  second  error,  it  is  laid  down  as  a  general  rule  in  5 
Bac.  Abr.,  tit.  Plea  and  Pleading,  page  330,  for  which  is  cited 
Lil.  Reg.  408,  that  the  plaintiff  after  a  plea  pleaded,  or  after  the 
end  of  the  second  term,  shall  not  add  a  new  count  to  his  decla- 
ration, under  pretence  of  amending  it.  The  same  rule  is  laid 
down  also  in  Styles' .Register,  tit.  Declaration,  page  206.  So  in 
Cope  v.  Marshall,  Sayre  Rep.  236,  it  was  held  to  be  contrary  to 
a  general  rule  of  law,  to  permit  an  amendment  which  amounted 
to  the  adding  of  a  new  count,  after  the  action  had  been  com- 
menced two  terms  ;  and  was  further  held  to  be  a  general  rule  of 
law,  "  that  an  amendment  *by  which  a  new  right  of  action  r-^.-,  n-i 
would  be  alleged,  ought  not  to  be  permitted."  And  ac-  L 
cording  to  the  first  of  these  rules  the  court,  in  Aubeer  v.  Barker, 
1  Wils.  149,  refused  leave  to  amend  the  declaration,  by  adding 
two  counts,  after  the  term  next  after  the  term  in  which  it  had 
been  delivered.  Under  these  authorities  the  Supreme  Court  of 
New  York  in  Sackett  v.  Thompson,  2  Johns.  206,  refused  to  allow 
the  plaintiff  to  amend  his  declaration  by  adding  one  or  two  new 
counts,  after  the  action  had  been  commenced  for  several  terms 
and  had  been  noticed  for  trial  several  terms.  These  rules,  how- 
ever, being  only  general  rules,  are  not  without  their  exceptions  ; 
and  accordingly,  in  the  case  of  Bearcroft  v.  The  Hundreds  of 
Burrhouse  and  Stone,  3  Lev.  347,  after  issue  joined  and  the 
trial  thereof  ready  at  bar,  but  adjourned  for  some  reason  not  con- 


16  SUPREME  COURT  [Dec.  Ten*> 

(Tryon  «.  Miller.) 

ncctcd  with  the  amendment,  to  a  subsequent  day,  the  court  in  the 
interim  4>ermitted  the  plaintiff  to  amend  his  declaration  by  de- 
claring for  an  assault  and  robbery,  for  which  the  action  was 
brought,  committed  on  his  servants,  and  stating  on  oath  made 
by  them,  which  through  mistake  had  been  alleged  to  have  been 
committed  on  himself.  The  court  seem  to  have  allowed  the 
amendment  because  the  statute  of  limitations  would  have  been  a 
bar  to  the  plaintiff's  recovery  in  a  new  or  second  action.  And 
for  a  like  reason,  an  amendment  was  permitted  in  the1  Dutchess 
of  Marlborough  v.  Wigmore,  Fitz.  Rep.  193,  but  still  not  so  as 
to  change  the  nature  of  the  action. 

Now,  in  the  case  before  us,  the  action  had  not  only  been  com- 
menced, and  the  declaration  filed  two  years,  and  more  than  nine 
terms  before  the  plaintiffs  asked  leave  to  file  a  new  declaration 
and  to  withdraw  the  old,  but  they,  after  filing  their  declaration, 
had  by  a  rule  entered  at  their  instance  for  that  purpose,  taken 
the  cause  out  of  court  and  tried  it  before  arbitrators,  who  made 
an  award  in  their  favor  against  the  defendant.  The  latter,  after 
paying  all  the  costs  which  had  accrued  upon  the  action,  as  he  was 
bound  to  do,  in  order  to  obtain  an  appeal  from  the  award,  brought 
the  cause  back  by  appeal  into  court,  where  issue  was  joined  up- 
wards of  a  year  before  the  application  was  made  to  amend ;  and 
although  the  statute  of  limitations  would  have  barred  any  new 
action  that  the  plaintiffs  could  have  brought  for  the  cause  which 
they  wished  to  have  introduced  upon  the  record,  by  filing  a  new 
declaration  at  the  time  of  their  application,  and  it  may  therefore 
be  said  they  came  within  the  exception  established  in  the  cases 
already  mentioned  ;  yet,  it  is  conceived  that  the  plaintiffs  by  filing 
their  declaration,  which  contained  a  good  cause  of  action  set  forth 
in  perfect  form,  and  then  referring  that  cause  so  stated  to  the 
decision  of  arbitrators,  who  made  an  award  in  their  favor,  put 
it  out  of  the  power  of  the  court  to  permit  them  to  substitute  a 
new  and  different  cause  of  action,  to  be  tried  in  court  upon  the 
appeal,  from  that  decided  on  by  the  arbitrators.  It  is  manifest 
r,M--i  tne  court  could  not  have  *granted  the  prayer  of  the  plain- 
'  tiffs  in  this  respect,  without  doing  injustice  to  the  de- 
fendant by  depriving  him  of  his  right  to  have  the  costs,  which  he 
paid  on  taking  his  appeal,  returned  to  him  in  case  he  succeeded 
in  court  on  the  trial  of  the  same  cause  of  action  which  had  been 
decided  against  him  by  the  arbitrators.  The  cause  of  action  set 
forth  in  the  plaintiffs'  declaration,  was  the  conversion  by  the  de- 
fendant of  certain  bonds  or  writings  obligatory,  belonging  to 
them,  for  the  payment  of  money  ;  but  the  new  declaration,  which 
they  asked  leave  to  file  in  place  of  the  old,  was  for  the  conver- 
sion of  certain  instruments  of  writing  by  the  defendant,  not 
under  seal,  containing  the  engagements  of  certain  persons,  whose 


1835.]  OF  PENNSYLVANIA.  17 

« 

(Tryon  v.  Miller.) 

names  were  thereto  subscribed,  to  indemnify  some  of  the  plain- 
tiffs to  a  certain  extent,  for  having  become  the  sureties  of  Jacob 
G.  Tryon,  as  sheriff  of  Philadelphia  county.  That  these  causes 
of  action  are  totally  different  from  each  other,  is  too  obvious  to 
admit  of  a  question  or  doubt ;  and  we  must  presume  that  the 
cause  of  action  set  forth  in  the  declaration  was  the  one  tried  and 
decided  by  the  arbitrators  ;  because  legally  they  could  not  inves- 
tigate and  decide  any  other.  To  have  granted,  then,  the  request 
of  the  plaintiffs,  would  in  effect  have  enabled  them  to  avoid  a 
compliance  with  the  condition  upon  which  they  received  from  and 
compelled  the  defendant  to  pay  all  the  costs  that  accrued  upon 
the  cause  of  action  set  forth  in  their  declaration ;  which  was, 
that  they  should  repay  the  same  to  the  defendant  if  he  succeeded 
upon  his  appeal ;  because  the  plaintiffs,  finding,  after  the  appeal 
taken  by  the  defendant,  that  they  could  not  sustain  the  cause  of 
action  set  forth  in  their  declaration  and  tried  by  the  arbitrators 
against  him,  wished  to  abandon  it  altogether  and  to  substitute 
another,  in  which  they  probably  thought  they  could  succeed  ;  and 
thus  not  only  mulct  the  defendant  in  the  costs  of  a  trial  of  a  new 
cause  of  action,  but  avoid  returning  to  him  the  costs  which  he 
was  compelled  to  pay  on  the  award  of  the  arbitrators,  for  a  cause 
of  action  which  the  plaintiffs  were  unable  afterwards  to  sustain 
upon  a  trial  in  court.  In  short,  the  result  of  the  trial  in  court, 
which  has  established  the  right  of  the  defendant  to  have  these 
costs  repaid  to  him,  shows  most  clearly  the  injustice  that  might 
have  been  done  him  had  the  court  granted  the  amendment,  on  the 
terms  asked  for  by  the  plaintiff.  It  was  upon  this  ground  that 
the  District  Court  of  the  City  and  County  of  Philadelphia,  in  the 
case  of  Howard  v.  McKeown^  2  Browne's  Rep.  159,  very  pro- 
perly refused  to  allow  the  plaintiff  to  add  a  new  and  substantive 
count  to  his  declaration. 

But  even  taking  it  that  there  had  been  no  insuperable  objec- 
tion to  the  count,  and  allowing  the  amendment,  I  am  still  inclined 
to  think  that  their  refusal  to  do  so  would  not  have  been  the  sub- 
ject of  revision  and  correction  in  this  court.  The  amendment 
asked  for,  was  not  one  merely  of  form,  but  of  substance  ;  it  was 
to  take  place  on  *  the  record  a  new  and  different  cause  of  ^^  £-. 
action  from  that  which  the  plaintiffs  had  stated  with  suf-  "- 
ficient  legal  accuracy,  and  filed  two  years  previously,  immediately 
after  the  return  of  their  writ.  Now,  I  apprehend  that  such  an 
amendment  can  only  be  claimed  according  to  the  principles  of  the 
common  law,  which  leaves  the  matter  altogether  within  the  dis- 
cretion of  the  court  applied  to  for  that  purpose,  either  to  allow  or 
disallow  it,  as  may  be  deemed  necessary,  in  order  to  advance  the 
cause  of  justice.  It  is  only  statutory  amendments  which  are  de- 
mandable  of  right  and  inquirable  into  here.  Proper  v.  Luce, 

VOL.  I. — 2 


18  SUPREME  COURT  \_Dec.  Term, 

(Reigart  t.  Ehler.) 

3  P.  &  W.  66.  If  the  amendment  in  question  then  be  not 
authorized  by  statute,  as  I  conceive  most  clearly  that  it  is  not,  the 
decision  of  the  District  Court  in  regard  to  it  cannot  be  reached 

here. 

The  judgment  is  affirmed. 

Cited  by  Counsel,  2  Wharton,  130,  158 ;  1  Watts  &  Sergeant,  272 ;  4  Id. 
142,  552 ;  5  Barr,  114 ;  6  Id.  252 ;  7  Id.  127 ;  2  Jones,  245 ;  5  Harris,  177 ; 
8  Id.  18 :  13  Id.  326. 

Cited  by  the  Court,  pout  290  ;  2  Barr,  447  :  7  Id.  435  ;  11  Wright,  200. 

See  also,  5  Watts  &  Sergeant,  35 ;  1  Casey,  409 ;  8  Wright,  456 ;  9  Id. 
404. 


[PHILADELPHIA,  JANTJAKY  4,  1836.] 
REIGART  v  EHLER. 

IN   ERROR. 

One  bequeathed  a  certain  sum  of  money  to  his  granddaughter  A.,  as  her  ab- 
solute property,  and  declared  that  it  was  not  to  be  for  the  benefit  of  her 
husband  or  father,  &c.,  and  he  appointed  his  son  B.  executor  of  his  will. 
In  1829,  B.,  by  indenture,  conveyed  to  C.  (the  father  of  A.)  a  certain 
house  and  lot,  htibendum,  to  C.,  his  heirs  and  assigns,  in  trust,  neverthe- 
less, for  the  sole  use,  benefit  and  behoof  of  A.  and  her  heirs.  It  was 
alleged  that  this  conveyance  was  made  in  satisfaction  of  the  legacy  ;  but 
A.  was  not  a  party  to  it.  In  1830,  by  indenture  between  B.  of  the  first 
part,  and  A.  and  J.  S.  her  husband  of  the  second  part,  and  D.  of  the 
third  part,  reciting  the  previous  conveyance,  and  that  it  was  made  with- 
out the  privity  or  consent  of  J.  8.  or  A.  his  wife,  B.,  in  consideration  of 
the  said  legacy,  conveyed  the  said  premises  to  D.,  in  trust  for  the  use  of 
J.  8.  and  A.  his  wife,  &c.  In  assumpsit  for  the  use  and  occupation  of 
the  premises,  brought  by  C.  against  a  tenant  thereof,  it  was  held,  that 
the  deed  of  1829,  with  its  recitals,  was  admissible  in  evidence  against 
the  plaintiff,  and  that  the  deed  of  1829  being  invalidated  and  aiuuiUed 
by  that  of  1830,  the  plaintiff  was  not  entitled  to  recover. 

Tins  was  a  writ  of  error  to  the  District  Court  for  the  City  and 
County  of  Philadelphia. 

In  that  court,  Philip  Reigart,  trustee  of  Elizabeth  L.  Steven- 
son, brought  an  action  of  asfumpsit  against  John  Ehler,  for  the 
use  tod  occupation  of  a  house  in  the  city  of  Lancaster.  At  the 
trial,  the  action  was  marked  to  the  use  of  the  said  Elizabeth  L. 
Stevenson.  A  verdict  and  judgment  having  been  rendered  for 
r*191  ^e  Defendant  in  *  the  court  below,  the  case  came  before 
'  this  court,  upon  exceptions  taken  to  evidence,  and  to  the 
charge  of  the  court. 

The  material  facts  were  as  follows: 


1835.]  OF  PENNSYLVANIA.  19 

(Reigart  0.  Ehler.) 

Elizabeth  Stevenson,  formerly  Elizabeth  Reigart,  was  the  wife 
of  Josias  Stevenson,  junior,  and  one  of  the  granddaughters  of 
Dr.  Albert  Dufresne,  of  the  City  of  Lancaster,  deceased.  By 
his  last  will,  dated  the  8th  of  December,  1820,  and  proved  the 
13th  of  August,  1823,  Dr.  Dufresne  bequeathed  to  his  two  grand 
daughters,  Elizabeth  Reigart  and  Maria  Reigart,  a  legacy  of  nine 
thousand  dollars  each,  as  their  absolute  property — and  not  either 
to  their  respective  husbands,  or  to  their  fathers,  or  their  step 
brothers  or  step  sisters.  In  case  they  died  without  having  chil- 
dren, and  if  either  of  them  died  without  leaving  any  child  or 
children,  the  whole  was  to  go  to  the  survivor ;  but  if  both  died 
without  leaving  any  child  or  children,  then  to  the  testator's  son. 
He  then  directed  the. money  to  be  placed  out  at  interest,  and 
equally  divided  on  their  attaining  twenty-one,  or  at  the  time  of 
their  marriage,  in  case  of  marriage  after  attaining  the  said  age. 
Another  clause  of  the  will  provided,  that  if  either  of  them  died 
under  twenty-one,  unmarried,  and  without  having  any  child  or 
children,  the  whole  should  go  to  the  survivor  as  her  absolute 
property :  but  if  both  died  under  twenty-one,  unmarried,  and 
without  having  any  child  or  children,  then  he  bequeathed  the 
whole  to  his  son.  After  bequeathing  to  them  in  the  same  manner 
one-half  of  the  proceeds  of  his  effects  in  Europe,  he  devised  the 
residue  of  his  personal,  and  his  real  estate,  charged  with  the  two 
legacies  above  mentioned,  to  his  son,  Samuel  Dufresne,  and  ap- 
pointed him  and  two  others  executors.  On  the  22d  of  July, 
1829,  an  indenture  was  executed  between  Samuel  Dufresne  of 
the  one  part,  and  Philip  Reigart  of  the  other  part,  by  which 
Samuel  Dufresne,  in  consideration  of  nine  thousand  dollars  in 
hand,  paid  by  Elizabeth  L.  Stevenson,  and  of  four  dollars  paid 
by  P.  Reigart,  conveyed  the  premises  for  the  rent  of  which  this 
suit  was  brought,  and  other  real  estate  in  Lancaster,  to  Philip 
Reigart,  his  heirs* and  assigns,  "to  have  and  to  hold  to  the  said 
Philip  Reigart,  his  heirs  and  assigns,  in  trust,  nevertheless,  for 
the  sole  use,  benefit  and  behoof  of  the  said  Elizabeth  L.  Steven- 
son, and  her  heirs."  This  deed  was  acknowledged  by  Samuel 
Dufresne,  and  recorded  the  same  day.  It  was  further  stated  on 
the  trial  by  the  plaintiff,  who  produced  this  deed,  that  it  was  in 
payment  and  satisfaction,  pro  tanto,  of  the  legacy  of  nine  thous- 
and dollars,  and  was  considered  so  far  a  compliance  with  the  will. 
The  plaintiff  then  called  a  witness  who  testified,  that  the  defend- 
ant lived  on  the  property  first  described  in  the  deed :  that  the 
witness  lived  near  him  in  one  of  the  other  buildings  mentioned 
in  the  deed,  from  1825  or  1826,  until  the  first  of  January,  1832. 
That  the  defendant  resided  on  the  property  from  the  first  of 
April,  1830,  and  was  still  in  it.  He  was  to  pay  two  hundred 
and  eighty  dollars  per  *annum,  in  quarterly  payments.  I-^QA-I 
On  his  cross  examination,  he  stated  that  the  defendant  L  -1  J 


20  SUPREME  COURT  (Dec.  Term, 

(Reigart «.  Ehler.) 

paid  all  his  rent  to  George  B.  Porter,  Esq.,  to  the  first  of  April, 
1832.  That  the  witness  paid  rent  to  George  B.  Porter,  up  to 
the  same  date.  He  did  not  know  of  any  written  lease,  nor  did 
he  know  of  whom  defendant  rented.  Being  re-examined  he 
testified  lie  paid  his  rent  to  Mrs.  Stevenson.  She  and  Mr.  Stoe- 
ver  called  on  him  and  he  paid  the  rent  to  them.  He  got  an  in- 
demnity from  Mr.  Stoever.  Josiah  Stevenson  was  dead ;  he  heard 
of  his  death  in  February,  1832.  He  did  not  know  of  defendant 
paying  all  his  rent  to  Mr.  Porter.  He  only  knew  that  in  March, 
1832,  he  paid  seventy  dollars  in  full  to  April,  1832.  He  saw  him 
pay  it,  and  saw  Porter  give  him  a  receipt. 

The  defendant  then  offered  in  evidence,  an  indenture  dated  the 
28th  of  September,  1830,  between  Samuel  Dufresne  of  the  first 
part,  Josias  Stevenson,  Jr.  and  Elizabeth  L.  of  the  second  part, 
and  George  B.  Porter  of  the  third  part.  To  this  the  plaintiff  ob- 
jected, contending  that  the  deed  was  not  evidence,  nor  was  the 
recital  of  certain  facts  therein  stated  admissible.  But  the  court 
admitted  it ;  and  exception  was  taken. 

This  deed  recited  the  bequest  to  the  granddaughters,  with  the 
limitation  over  to  the  survivor,  and  the  death  of  Maria,  in  her 
minority  and  without  issue,  whereby  the  whole  became  vested  in 
Elizabeth  L.  Stevenson,  and  became  payable  to  Josias  Stevenson, 
Jr.  on  the  arrival  of  Elizabeth  at  twenty-one.  That  since  the 
said  Elizabeth  attained  twenty-one,  a  release  had  been  executed 
by  Josias  and  Elizabeth  for  the  legacies,  which  was  forwarded  to 
Samuel  Dufresne,  with  intent  to  be  delivered  to  the  said  Samuel 
and  others,  executors,  on  payment  of  the  legacies,  or  when  a 
proper  arrangement  for  the  same  should  be  made  ;  that  Samuel 
Dufresne  and  Philip  Reigart,  on  the  representations  of  Philip 
Reigart,  that  he  was  fully  authorized  by  Josias  Stevenson  and 
wife,  undertook  to  appropriate  and  apply  certain  real  estate  (the 
premises  referred  to  in  this  case,)  owned  by  Samuel  Dufresne,  at 
the  price  of  nine  thousand  dollars,  in  part  payment  of  the  lega- 
cies, which  it  is  now  ascertained  was  without  the  knowledge,  con- 
sent, or  approbation  of  J.  S.  and  wife,  or  either  of  them  ;  and 
that  Dufresne  executed  and  Reigart  took  upon  himself  to  accept 
the  deed  of  the  twenty-second  of  July,  1829 — which  deed  of  con- 
veyance was  null  and  void  by  reason  of  the  same  having  been 
executed,  and  the  arrangement  preparatory  thereto  made,  with- 
out the  consent,  knowledge,  or  approbation  of  the  said  Josias 
Stevenson  and  wife,  or  either  of  them.  It  then  conveyed  the 
promises  in  consideration  of  nine  thousand  dollars  theretofore 
paid  and  allowed  to  him  by  Josias  Stevenson  and  wife,  in  the 
settlement  and  payment  of  the  legacies,  and  one  dollar  paid  to 
Samuel  Dufresne,  to  George  B.  Porter,  his  heirs  and  assigns,  in 
trust  for  the  only  use,  benefit  and  behoof  of  the  said  Josias 


1835.]  OF  PENNSYLVANIA.  20 

(Reigart  v.  Ehler.) 

Stevenson,  Jr.  and  Elizabeth  L.  his  wife,  during  their  joint  lives, 
and  at  and  after  the  death  of  either  of  them,  *then  in  r^-j-i 
trust  to  and  for  the  use,  benefit,  and  behoof  of  the  sur-  "- 
vivor  of  the  said  Josias  and  Elizabeth  L.  his  wife,  and  the  heirs 
and  assigns  of  auch  survivor  forever — that  is  to  say,  in  case  the 
said  Josias  Stevenson,  Jr.,  should  survive  his  wife,  then  in  trust 
and  for  the  only  proper  use,  benefit,  and  behoof  of  the  said  Josias 
Stevenson,  Jr.,  his  heirs  and  assigns  forever;  and  in  case  the 
said  Elizabeth  L.  should  survive  her  husband,  the  said  Josias 
Stevenson,  Jr.,  then  in  trust  to,  and  for  the  only  proper  use, 
benefit,  and  behoof  of  the  said  Elizabeth  L.,  her  heirs  and  as- 
signs forever;  and  upon  this  further  trust  and  confidence,  that 
at  the  desire  and  request,  and  with  the  consent  and  approbation 
of  the  said  Josias  Stevenson,  Jr.,  and  wife,  at  any  time  or  times 
thereafter  during  their  joint  lives,  the  said  trustee  and  his  succes- 
sor should  and  might  sell  and  dispose  of  the  premises,  or  any  part 
thereof,  to  the  best  advantage,  and  with  like  consent  and  approba- 
tion invest  the  proceeds  in  real  estate  or  stocks,  to  be  conveyed 
and  settled  in  the  same  manner.  The  deed  was  acknowledged  the 
same  day,  and  recorded  on  the  tenth  of  February,  1831. 

The  Judge  in  charging  the  jury,  said, 

"  It  seems,  and  so  the  plaintiff's  counsel  opened  his  case,  and 
so  the  truth  warranted  him  in  doing,  that  one  of  the  executors  of 
Albert  Dufresne's  will  (though  two  of  them  had  undertaken  the 
office  of  executor),  made  the  deed  of  22d  July,  1829,  conveying 
with  other  »eal  estate,  the  premises,  for  the  use  and  occupation  of 
which  this  suit  was  brought,  in  payment  and  satisfaction  of  9000 
dollars,  of  the  18,000  dollars  bequeathed  to  Elizabeth  L.  Steven- 
son, who  survived  her  sister  Maria. 

Whether  Mrs.  Stevenson  would,'  by  consenting  to  this  deed, 
have  been  concluded  by  it,  it  is  unnecessary  for  us  to  consider. 
It  must  certainly,  however,  appear  before  effect  can  be  given  to 
it,  that  Samuel  Dufresne,  the  grantor,  had  authority  to  make  it, 
and  that  Philip  Reigart,  the  grantee,  had  authority  to  receive  it 
as  trustee  of  his  daughter,  Mrs.  Stevenson.  It  is  clear  that  the 
will  did  not  of  itself  authorize  Samuel  Dufresne  to  execute  such 
a  deed.  And  it  is  equally  clear,  that  Philip  Reigart  had  no  au- 
thority to  bind  his  daughter  to  such  an  arrangement  without  her 
consent.  No  express  authority  to  the  father  is  suggested;  and 
the  doctrine  that  an  acceptance  is  to  be  presumed  where  the  deed 
is  for  the  benefit  of  the  party,  is  wholly  inapplicable.  As  soon 
as  Mrs.  Stevenson  heard  of  the  transaction,  she  put  her  hand  to 
the  writing,  dated  28th  September,  1830,  disclaiming  the  deed  of 
22d  July,  1829,  denying  the  authority  of  her  father,  and  declar- 
ing it  a  nullity.  In  point  of  law,  then,  I  am  decidedly  of  opinion, 
that  for  all  the  purposes  of  this  suit,  the  deed  of  22d  July,  1829, 
was  void  and  of  no  effect. 


21  SUPREME  COURT  (.Dec.  Term, 

( Reigart «.  Ehler.) 

The  instrument  of  28th  September,  1830,  related  to  matters 
besides  that  which  I  have  mentioned.  How  far  it  might,  under 
r*ooi  certain  ""circumstances,  have  been  questioned  as  to  any  of 
L  J  those  matters,  it  is  not  necessary  now  to  decide,  but  as  her 
declaration  on  this  point,  it  is  sufficient. 

If  this  were  the  whole  of  the  case,  and  it  is  nearly  so,  I  should 
say  the  plaintiff  could  not  recover.  The  authority  to  bring  this 
suit  resting  only  on  that  deed,  must  be  pronounced  insufficient, 
when  the  deed  itself  is  ascertained  to  be  void. 

Another  point,  however,  is  made  by  the  plaintiff's  counsel.  He 
contends,  that  if  Mr.  Reigart,  under  the  belief  that  he  had  the 
right  to  let  the  premises  to  Mr.  Ehler,  actually  did  so,  Mr.  Ehler 
cannot  dispute  the  right  to  recover  the  rent.  Now,  there  is  no 
direct  proof  whatever  on  this  subject,  and  Mr.  Ehler  denies  that 
he  ever  paid  him  any  rent,  or  held  under  him,  or  recognized  him 
as  landlord.  So  far,  then,  the  position  fails.  But  the  plaintiff's 
counsel  again  contends,  that  as  Mr.  Ehler  took  the  house  on  the 
1st  of  April,  1830,  and  the  instrument  denying  Mr.  Reigart's 
authority  was  not  made  till  September  28th,  1830,  it  must  be 
presumed  that  Mr.  Ehler  had  taken  from  Mr.  Reigart,  and  he 
must  pay  rent,  at  least  up  to  the  28th  September,  1830. 

The  law,  in  the  absence  of  all  other  proof  than  what  we  have 
had,  will  raise  no  such  presumption;  and  even  if  it  were  as 
argued,  Mr.  Reigart  was  acting  for  Mrs.  Stevenson,  who,  it  is 
agreed  on  all  hands,  is  the  real  party  in  interest.  Now,  she  was 
at  liberty  to  deny  her  father's  authority,  past,  present  and  future, 
in  the  matter,  and  having  done  so,  and  made  her  own  arrange- 
ments as  to  the  rents,  the  father  could  not  maintain  this  suit  on 
behalf  of  the  daughter,  nor  could  she  use  her  father's  name  in  it, 
in  opposition  to  her  own  renunciation  and  disclaimer." 

In  this  court  the  plaintiff  assigned  for  error. 

1.  The  admission  of  the  deed  of  28th  September,  1830. 

2.  The  admission  of  the  recital,  as  evidence  of  the  facts  stated 
in  the  deed. 

3.  The  charge  of  the  court  throughout. 

4.  The  charge  of  the  court  in  the  following  particulars,  viz.: 

1.  Charging  that  the  deed  of  22d  July,  1829,  was  .void. 

2.  Charging  that  the  deed  of  28th  September,  1830,  was 
good. 

3.  Charging  that  there  was  no  presumption  from  any  evi- 
dence that   Ehler   had  assented   to  his  tenancy  under   the 
plaintiff. 

4.  Charging  and  considering  as  testimony  part  of  the 
opening  of  the  plaintiff's  counsel,  and  not  the  whole  of  it. 

6.  In  taking  all  the  facts  from    the  jury,  and  charging 
them  positively  to  find  for  the  defendant. 


1835.]  OF  PENNSYLVANIA.  23 

(Reigart  v.  Ehler.) 

*Mr.  Phillips  for  the  plaintiff  in  error,  argued  in  support  r^oon 
of  these  exceptions.  He  cited  6  Binn.  45, 427  ;  2  Binn.  468.  l 

Mr.  O.  Ingersoll  (with  whom  was  Mr.  Perkins)  for  the 
plaintiff  in  error,  was  stopped  by  the  court. 

The  opinion  of  the  court  was  delivered  by 

SERGEANT,  J. — The  first  question  arising  on  the  bill  of  excep- 
tions to  the  evidence  is,  whether  the  deed  of  the  28th  of  September, 
1830,  and  its  recitals,  were  admissible  in  evidence.  It  was  offered 
by  the  defendant,  to  show  that  Mrs.  Stevenson,  for  whose  use  the 
conveyance  of  the  22d  July,  1829,  was  taken  by  her  father,  had, 
on  being  apprised  of  its  existence,  dissented  from  it,  declared  it 
to  be  null  and  void,  and  in  conjunction  with  her  husband,  settled 
the  property  in  a  different  manner.  Had  Mrs.  Stevenson  been 
a  third  person,  wholly  unconnected  with  this  suit,  the  deed  of  1830 
would  have  been  evidence  for  this  purpose.  It  was  her  solemn, 
deliberate  act,  under  her  hand  and  seal,  and  acknowledged  before 
a  magistrate,  and  was  the  highest  evidence,  short  of  a  record,  of 
her  dissent  from  the  former  deed,  on  which  this  suit  was  founded. 
But  in  addition  to  this,  Mrs.  Stevenson  was  a  party  to  the 
present  suit.  It  was  marked  to  her  use  on  the  day  of  the  trial, 
and  she  was  entitled  to  the  whole  beneficial  interest  in  the  rent 
claimed,  even  supposing  that  the  deed  of  22d  July,  1829,  con- 
veyed to  her  no  more  than  an  equitable  interest.  That  deed  was 
to  her  father,  his  heirs  and  assigns,  to  have  and  to  hold  to  him, 
his  heirs  and  assigns,  in  trust  for  the  sole  use,  benefit,  and  behoof 
of  Mrs.  Stevenson,  and  her  heirs.  In  an  ordinary  case,  such  a 
deed  would  not  create  a  trust  in  her,  but  a  use  executed  by  the 
statute,  (1  Prest.  Estates,  191,)  and  would,  therefore,  on  its 
face,  have  passed  to  her  the  whole  legal  estate  in  the  premises. 
So  that  she  would  be  the  party  legally  as  well  as  beneficially 
interested  in  this  suit;  and  any  act  or  declaration  or  recital  of 
hers  would  be  evidence  against  her.  The  only  ground  on  which 
it  can  be  contended  that  no  more  than  a  trust  passed  to  her,  is 
that  it  is  conveyed  for  her  "  sole  use,  benefit,  and  behoof,"  which 
means  for  her  separate  estate;  and  in  that  case,  a  trust  being 
necessary  to  support  her  separate  interest,  such  construction 
might  be  given  to  it.  On  the  construction  of  similar  words,  some 
nice  distinctions  have  been  made  by  the  English  Courts,  (Clancy 
on  Married  Women,  267,)  and  the  decisions  in  Pennsylvania  are 
collected  and  examined  in  the  opinion  of  this  court  delivered  by 
Mr.  Justice  Kennedy,  in  the  case  of  Evans  v.  Knorr,  (4  Rawle, 
66.)  It  is  not  necessary,  nor  do  I  mean  to  express  any  opinion 
on  this  point,  because,  if  Mrs.  Stevenson  had  the  equitable 
interest  in  the  demand  in  this  suit,  her  declarations  and  recitals 


23  SUPREME  COURT  [Dec.  Term, 

(Rcigart  «.  Ehler.) 

respecting  her  interest  in  the  matter  in  controversy,  would  be 
evidence  for  the  defendant;  and  the  recitals  in  question,  being 
r*94.1  conta^nc^  m  an  indenture,  are  to  *be  considered  as  the 
L  J  words  of  all  who  are  parties  to  it.  I  am  therefore  of 
opinion,  there  was  no  error  in  admitting  in  evidence  the  deed  of 
28th  September,  1830,  and  its  recitals. 

The  next  question  is,  whether  the  court  were  right  in  charging 
the  jury  that  the  deed  of  22d  July,  1829,  was  void,  and  the  deed 
of  28th  September,  1830,  was  good.  I  do  not  perceive  on  what 
ground  it  can  be  pretended,  that  Mrs.  Stevenson  can  again  set 
up  the  first  deed,  and  recover  upon  it,  after  her  solemn  declara- 
tion in  the  last  deed,  that  the  former  was  executed  without  the 
knowledge,  consent,  or  approbation  of  herself  and  husband,  that 
it  was  null  and  void,  and  after  having  conveyed  the  same  property 
to  another  trustee,  and  settled  it  to  other  uses  and  purposes,  and 
when  that  settlement  has  been  carried  into  execution  by  the 
trustee's  demanding  and  recovering  the  rents  from  the  tenants 
under  it,  for  the  benefit  of  her  and  her  husband.  She  had  the 
undoubted  right  and  power,  if  the  first  deed  was  made  without 
her  knowledge  and  consent,  to  annul  it  at  the  first  opportunity ; 
and  on  availing  herself  of  this  power,  and  exercising  it  by  a 
deliberate  act,  the  deed  was  absolutely  null  and  void  ab  initio. 
It  was  not  merely  voidable  so  as  to  be  good  for  the  intervening 
time:  it  had  no  validity  from  the  beginning,  the  assent  of  the 
ostensible  parties  to  it  being  wanting.  The  property  never 
passed  by  it  for  any  purpose  whatever;  and  the  settlement  of 
the  estate  by  deed  of  28th  September,  1830,  was  made  on  the 
ground,  that  Mrs.  Stevenson  remained  free  and  untrammelled, 
and  at  liberty  to  settle  the  estate  as  she  pleased.  Having  done 
so,  it  is  clear,  that  the  deed  of  29th  July,  1829,  never  had  any 
legal  existence,  and  that  the  deed  of  1830,  was  valid  and  bind- 
ing. If  so,  Mr.  Porter,  the  trustee  under  the  deed  of  1830,  was 
alone  empowered  to  receive  the  rents ;  and  though  the  evidence 
is  not  very  clear,  there  is  reason  to  believe,  that  he,  or  Mrs. 
Stevenson,  did  receive  them. 

Another  exception  to  the  charge  is,  that  the  court  below  stated 
that  there  was  no  presumption  from  any  evidence,  that  Ehler, 
the  defendant,  had  assented  to  the  tenancy  under  the  plaintiff. 
The  only  facts  that  could  be  supposed  to  justify  such  a  presump- 
tion, are  the  evidence  of  a  witness  for  the  plaintiff,  that  the  de- 
fendant had  occupied  one  of  the  houses  from  the  1st  of  April, 
1830 :  and  that  the  witness  had  occupied  another  of  the  houses 
and  paid  the  rent  to  Mrs.  Stevenson.  But  there  was  no  evidence 
under  whom  Ehler  rented  or  held  the  premises.  He  paid  some, 
if  not  all  his  rent,  to  Mr.  Porter,  the  trustee  under  the  deed  of 
1830:  and  the  jury  must  have  been  altogether  at  a  loss  to  deter- 


1835.]  OF  PENNSYLVANIA.  24 

(Spring  Garden  v.  The  Northern  Liberties.) 

mine  under  whom  he  held.  In  order  to  estop  a  person  from 
denying  the  title  of  one  claiming  rent  as  his  landlord,  the  allega- 
tion that  he  held  under  him  as  tenant  ought  to  be  clearly  and 
positively  established.  It  ought  not  to  rest  on  conjecture.  If 
Ehler  really  rented  from  the  plaintiff,  or  acknowledged  his  title, 
the  fact  is  susceptible  of  proof,  and  the  plaintiff  was  *  bound  r^oc-i 
to  adduce  such  proof  before  he  could  avail  himself  of  the  L 
rule  of  law  that  the  tenant  shall  not  deny  his  landlord's  title. 
No  such  proof  was  given,  nor  any  evidence  from  which  the  jury 
could  be  justified  in  presuming  it.  The  other  errors  assigned  are 
without  foundation. 

Judgment  affirmed. 


[PHILADELPHIA,  JAITOARY  5,  1836.] 

THE  COMMISSIONERS  OF  THE  DISTRICT  OF  SPRING 
GARDEN  and  Others  against  THE  COMMISSIONERS  OF 
THE  INCORPORATED  DISTRICT  OF  THE  NORTHERN 
LIBERTIES. 

The  public  wharf  or  landing  place,  called  ' '  The  Hay-scales  Landing ' '  in  the 
Northern  Liberties,  of  the  city  of  Philadelphia,  and  the  public  wharf  or 
landing  place  on  the  south  of  and  adjoining  Callowhill  street  in  the 
same  district,  were,  by  the  act  of  the  16th  of  March,  1819,  vested  in  the 
board  of  commissioners  of  the  incorporated  district  of  the  Northern 
Liberties,  in  trust  for  the  use  of  the  public  generally  ;  and  neither  the  dis- 
trict of  Spring  Garden,  nor  the  township  of  Penn,  nor  the  unincorpor- 
ated part  of  the  Northern  Liberties,  has  any  right  to  any  part  of  the 
value  or  income  of  those  wharves  or  landing  places  or  either  of  them. 

THIS  case  came  before  the  court  in  pursuance  of  an  act  of  the 
Legislature  passed  on  the  12th  day  of  April,  1828,  (Pamphlet 
Laws,  356 ;)  reciting  that  by  an  act  passed  on  the  16th  of  April, 
1819,  certain  wharves  and  landing  places  in  the  incorporated  dis- 
trict of  the  Northern  Liberties,  were  vested  in  the  commissioners 
thereof,  and  that  it  had  been  represented  to  the  Legislature  that 
the  control  and  benefit  of  the  said  wharves,  &c.,  ought  not  to  be 
exclusively  in  the  said  commissioners,  and  therefore  providing 
that  it  should  be  lawful  for  the  commissioners  and  inhabitants  of 
the  Kensington  District  of  the  Northern  Liberties,  the  commis- 
sioners of  the  district  of  Spring  Garden,  and  the  supervisors  of 
the  public  roads  and  highways  in  the  unincorporated  townships 
of  the  Northern  Liberties  and  Penn,  to  apply  by  petition  to  the 
Supreme  Court  of  Pennsylvania,  for  the  Eastern  District,  pray- 
ing the  court  to  inquire  into  the  merits  or  claims  of  the  districts 


25  SUPREME  COURT  [Dec.  Term, 

(Spring  Garden  ».  The  Northern  Liberties.) 

and  townships  aforesaid  to  any  part  or  portion  of  the  value  or 
income  of  the  said  wharves  and  landing  places,  and  to  make  such 
order  in  the  premises  as  justice  and  equity  may  require. 

The  act  then  directed  the  method  of  proceeding  to  be  pursued, 
and  the  relief  to  be  given  by  the  Supreme  Court,  if  they  should 
consider  the  claim  of  the  petitioners  well  founded. 

F*2fi1  *  ^  an  ac*"  P8^6^  on  tne  6th  day  of  April,  1833,  (Pam- 
J  phlet  Laws,  188,)  the  Supreme  Court  was  authorized  to 
take  cognizance  of  the  case  on  the  application  of  either  of  the 
said  districts  or  townships. 

The  claim  of  the  several  districts  and  townships  to  participate 
in  the  income  and  benefits  of  these  wharves,  arose  from  an  act 
passed  on  the  20th  of  February,  1768,  entitled,  "  An  Act  for 
raising  by  way  of  lottery,  the  sum  of  2,000  pounds,  for  purchas- 
ing a  public  landing  in  the  Northern  Liberties,  and  paving  the 
streets  of  the  City  of  Philadelphia,"  the  preamble  of  which  was  as 
follows : 

"  Whereas,  it  has  been  represented  to  the  Assembly  of  this 
province,  by  petition  from  sundry  inhabitants  of  the  city  of  Phila- 
delphia and  Liberties  thereto  adjoining,  that  the  few  public  land- 
ings at  the  north  end  of  said  city  and  in  the  said  Liberties 
thereof,  are  scarcely  sufficient  for  the  accommodation  of  its  present 
inhabitants  and  the  king's  barracks.  And  whereas,  it  hath  been 
also  represented  from  the  commissioners  for  pitching  and  paving 
the  streets,  lanes,  and  alleys  of  the  city  of  Philadelphia,  that  the 
moneys  granted  or  lent  for  pitching,  paving  and  keeping  clean 
the  said  streets,  &c.,  for  some  time  past  have  all  been  expended ; 
that  the  annual  taxes  on  the  inhabitants  amounted  to  no  more  than 
scarcely  sufficient  to  pay  scavengers,  and  make  the  necessary  re- 
pairs in  the  pavements,  and  that  a  considerable  part  of  the  said 
city  remains  still  unpaved  to  the  great  inconvenience  as  well  of 
travellers  as  of  the  inhabitants  of  the  said  city." 

The  act  then  proceeded  to  direct  the  method  of  raising  money 
by  a  lottery,  and  directed  the  appropriation  thereof  as  follows : 

"  And  be  it  further  enacted  by  the  authority  aforesaid,  that 
after  the  payment  of  the  sums  due  to  the  fortunate  adventurers  in 
the  said  lottery,  and  defraying  the  costs  and  expenses  attending 
the  same,  the  neat  sum  of  money  remaining  in  the  hands  of  the 
treasurer  aforesaid,  shall  be  applied  in  manner  following,  that  is 
to  say,  two  thousand  pounds  thereof  for,  and  towards  purchasing 
a  landing  in  the  Northern  Liberties  nearly  opposite  the  barracks, 
and  improving  the  same  with  the  landing  at  the  end  of  Callowhill 
street,  as  hereinafter  is  directed,  and  the  remainder  to  be  paid  to 
the  city  commissioners,  for  pitching  and  paving  the  streets,  lanes, 
and  alleys  pf  the  city  of  Philadelphia,  or  to  their  treasurer,  het 
better  to  enable  them  so  to  pitch,  pave,  and  keep  clean  the  streets, 
lanes  and  alleys  aforesaid. 


1835.]  OF  PENNSYLVANIA.  26 

(Spring  Garden  v.  the  Northern  Liberties.) 

"  And  be  it  further  enacted  by  the  authority  aforesaid,  that 
the  commissioners  of  the  county  of  Philadelphia,  in  trust  for  the 
public,  by  and  with  the  consent  and  approbation  of  the  justices 
of  the  peace  of  the  said  county,  in  their  court  of  Quarter  Ses- 
sions, shall  *and  they  are  hereby  required  and  enjoined,  r*o7n 
to  buy  a  landing  nearly  opposite  the  said  barracks,  and  •• 
receive  the  deeds  thereof  in  trust  for  the  public,  and  farther,  to 
build  or  cause  to  be  built  thereon,  a  good  wharf,  and  a  pier  for 
the  use  of  the  public.  And  the  said  county  commissioners  for 
the  time  being,  or  a  majority  of  them,  with  the  approbation  of 
any  three  justices  of  the  peace  for  said  county,  are  hereby  en- 
joined and  required  for  ever  hereafter,  to  have  the  care,  direction, 
and  management  of  the  said  landing,  in  letting  the  same  out  to 
any  person  or  persons  for  the  purposes  of  repairing  and  improving 
the  same  from  time  to  time,  for  ever  hereafter  as  the  said  com- 
missioners or  justices  or  a  majority  of  them  for  the  time  being, 
may  judge  most  for  the  public  good. 

"  And  whereas,  the  honorable  the  proprietaries  of  the  province 
of  Pennsylvania,  have  continued  Callowhill  street  in  the  Northern 
Liberties  aforesaid,  into  the  river  Delaware  ;  and  as  a  public  land- 
ing place  at  the  end  of  the  same  street,  may  hereafter  prove  very 
advantageous  and  beneficial  to  the  public.  Be  it  therefore  further 
enacted  by  the  authority  aforesaid,  That  the  said  county  com- 
missioners, or  a  majority  of  them,  with  the  consent  and  appro- 
bation of  any  three  justices  of  the  peace  of  the  county  aforesaid, 
shall  for  ever  hereafter  have  the  same  power  and  authority  for 
the  improving  and  letting  the  same  landing  place  at  the  end  of 
Callowhill  street  aforesaid,  for  the  uses  and  purposes  aforesaid, 
as  to  them  are  hereby  given  and  granted  with  respect  to  the  land- 
ing place  nearly  opposite  to  the  said  barracks,  hereby  intended  to 
be  purchased." 

At  the  time  of  the  passage  of  this  act,  the  "  township  of  the 
Northern  Liberties  "  comprehended  within  its  geographical  limits, 
the  territory  lying  between  the  rivers  Delaware  and  Schuylkill 
north  of  the  city  of  Philadelphia,  extending  northward  to  the 
present  northern  boundary  of  the  townships,  and  included  the 
present  incorporated  district  of  the  Northern  Liberties,  the  incor- 
porated district  of  Spring  Garden,  the  incorporated  district  of 
Kensington,  and  the  unincorporated  townships  of  the  Northern 
Liberties  and  Penn. 

Under  the  authority  of  the  acts  of  1828  and  1833,  the  com- 
missioners of  the  district  of  Spring  Garden,  and  the  supervisors 
of  the  public  roads  and  highways  in  the  unincorporated  townships 
of  the  Northern  Liberties  and  Penn,  presented  their  petition  to 
this  court  at  December  Term,  1833,  setting  forth  spme  of  the 
provisions  of  the  acts  of  1768  and  1828,  and  praying  that  a  cita- 


27  SUPREME  COURT  [Dec.  Term, 

(Spring  Garden  e.  The  Northern  Liberties.) 

tion  might  be  issued  to  the  commissioners  of  the  incorporated  dis- 
trict of  the  Northern  Liberties,  and  to  the  commissioners  and 
inhabitants  of  the  Kensington  district  of  the  Northern  Liberties, 
requiring  them  to  appear  and  show  cause  why  the  court  should 
not  make  such  order  in  the  premises  as  justice  and  equity  should 
require,  &c. 

On  the  16th  December,  1833,  an  answer  was  filed  on  the  part 
r*<?81   *°^  *ne  commissi°ners  °f  the  incorporated  district  of  the 
J   Northern  Liberties ;  the  material  parts  of  which  were  as 
follows : 

That  by  an  Act  of  Assembly  passed  on  the  12th  day  of  April, 
1828,  which  is  partially  recited  in  the  petition  aforesaid,  the  now 
petitioners  and  the  district  of  Kensington  were  authorized  to 
apply  to  this  court,  praying  the  same  to  inquire  into  the  merits 
of  the  claims  of  said  the  now  petitioning  districts  and  townships 
and  the  district  of  Kensington,  to  any  part  or  portion  of  the 
value  or  income  of  two  certain  public  wharves  or  landings  in  the 
said  act,  particularly  designated  by  name  or  locality,  and  to  make 
such  order  in  the  premises  as  justice  and  equity  might  require. 

In  the  petition  aforesaid,  it  is  alleged  that  a  landing  in  the 
Northern  Liberties  and  other  wharves,  (which  landing  and  wharves 
are  no  otherwise  therein  described  than  as  having  been  purchased 
with  a  fund  or  the  proceeds  thereof,  raised  by  lottery,  by  virtue 
of  an  act  of  Assembly  passed  the  20th  February,  1768,)  and  the 
fund  produced  from  the  said  landing  and  wharves,  are  now  vested 
by  act  of  Assembly,  in  the  commissioners  of  the  incorporated  dis- 
trict of  the  Northern  Liberties,  saving  to  all  other  parties  their 
rights  therein. 

But  it  is  not  alleged  in  the  said  petition  that  the  said  now  peti- 
tioning districts  and  townships,  have  any  claims  to  any  part  or 
portion  of  the  value  or  income  of  any  wharves  or  landings,  nor  is 
the  nature,  origin,  extent  or  character  of  such  claim,  (if  any  such 
there  be)  therein  set  forth,  nor  are  the  facts  or  circumstances 
stated  whereon  any  such  claims  are  supposed  to  be  founded,  nor 
do  the  now  petitioning  district  and  townships  pray  your  honor- 
able court,  to  inquire  into  the  merits  of  any  such  claims. 

For  which,  and  divers  like  imperfections  therein,  the  said  com- 
missioners of  the  incorporated  district  of  the  Northern  Liberties, 
are  advised  that  the  said  petition  is  wholly  insufficient ;  and  they 
do  therefore  humbly  demand  the  judgment  of  this  honorable 
court,  whether  they  shall  be  enforced,  or  ought  in  justice  and 
equity  to  be  required  to  make  any  other  or  further  answer  there- 
unto, and  pray  to  be  dismissed  with  their  reasonable  costs,  in  this 
behalf  wrongfully  sustained. 

WM.  M.  MEREDITH, 
CHARLES  NAYLOR, 
For  the  Northern  Liberties. 


1835.]  OF  PENNSYLVANIA.  .         28 

(Spring  Garden  <o.  The  Northern  Liberties.) 

At  the  same  time  the  following  answer  was  filed  on  the  part  of 
the  Kensington  district : 

The  said  commissioners  and  inhabitants  of  the  Kensington  dis- 
trict of  the  Northern  Liberties  in  answer  to  the  said  citation  say, 
That  admitting  the  facts  set  forth  in  the  said  petition  upon  which 
the  *citation  to  them  is  founded — and  of  the  several  acts  r*ocn 
of  Assembly  in  the  said  petition  recited,  and  reserving  to  !• 
themselves  the  right  to  question  whether  the  said  district  of 
Spring  Garden  and  unincorporated  Penn  township,  have  any 
claim  to  a  portion  in  said  landings  or  the  fund  arising  or  which 
has  arisen  therefrom,  further  say,  that  the  said  Kensington  dis- 
trict is  now  and  always  has  been  a  component  part  of  the  North- 
ern Liberties — and  is  both  in  law  and  equity  entitled  to  a 
portion  or  share  of  the  public  landings  or  the  funds  which  have 
arisen  or  may  arise  therefrom.  They  therefore  pray  the  court 
to  make  such  order  in  the  premises  as  justice  and  equity  may  re- 
quire. 

C.  GOODMAN, 
Solicitor  for  Kensington  district ,  N.  L. 

J.  P.  NORRIS,  JR. 
December  IGth,  1833. 

An  amended  petition  of  the  commissioners  of  the  district  of 
Spring  Garden,  and  of  the  supervisors  of  the  public  roads  and 
highways  in  the  unincorporated  townships  of  the  Northern  Lib- 
erties and  Penn,  was  afterwards  filed,  setting  forth, 

That  by  an  act  of  Assembly  passed  the  20th  day  of  February, 
A.  D.  1768,  the  sum  of  two  thousand  pounds  were  raised  by  way 
of  lottery,  and  appropriated  to  the  purchase  of  a  landing  within 
the  township  of  the  Northern  Liberties,  and  for  the  improvement 
of  the  same. 

That  by  the  same  act,  the  commissioners  of  the  county  of  Phila- 
delphia were  directed,  with  the  consent  of  three  justices  of  the 
peace  of  the  said  county,  to  purchase  with  the  sum  aforesaid,  a 
landing  within  the  said  Northern  Liberties  in  trust  for  the  public  ; 
and  such  landing  called  the  "Hay  Scales  Landing"  at  the  end  of 
Noble  street,  was  accordingly  so  purchased  and  conveyed  to  the 
said  commissioners  in  trust  for  the  public  in  the  same  year.  This 
landing  under  the  powers  conferred  by  the  said  act,  was  subse- 
quently leased,  and  great  rents  and  large  sums  of  money  were 
received  by  the  said  commissioners  therefrom.  That  in  pursuance 
of  an  act  of  Assembly  of  the  4th  of  April,  1796,  which  author- 
ized the  said  county  commissioners  out  of  said  landing  fund,  to 
purchase  other  landings  within  the  township  of  the  Northern 
Liberties,  and  hold  them  "under  the  like  trusts"  as  the  before 
mentioned  public  landing,  a  part  of  said  moneys  were,  in  the  year 


29  SUPREME  COURT  [Dee.  Term, 

(Spring  Garden  r.  The  Northern  Liberties.) 

1802,  invested  in  the  purchase  of  the  landing  on  the  south  side 
of  Callowhill  street,  and  a  part  remained  or  afterwards  accumu- 
lated in  the  hands  of  the  said  county  commissioners. 

That  by  an  act  of  Assembly  passed  the  23d  of  March,  1803, 
and  its  several  supplements,  a  small  part  of  the  said  township  of 
the  Northern  Liberties  was  incorporated  by  the  name,  style,  and 
r*^m  *^e  *°f  "The  commissioners  of  the  incorporated  district 
J'of  the  Northern  Liberties,"  and  by  another  act  passed 
March  16th,  1819,  the  said  landings  and  the  funds  arising  from 
the  rents  and  income  thereof,  were  transferred  to  the  commission- 
ers of  the  incorporated  district  of  the  Northern  Liberties,  saving 
the  rights  of  all  other  parties :  That  the  said  commissioners  of 
the  incorporated  district  of  the  Northern  Liberties  received  on 
the  25th  of  February,  1820,  from  the  commissioners  of  the 
county  of  Philadelphia,  the  sum  of  seven  thousand  eight  hundred 
and  eight  dollars  and  one  cent,  being  the  accumulated  balance  of 
said  public  landing  fund,  and  have  since  then  received  other  large 
sums  of  money,  the  rents  of  and  income  from  the  said  landings 
and  public  landing  fund,  all  which  sums  of  money  they  have  ap- 
propriated to  their  sole  use  and  benefit,  refusing  to  allow  any  of 
the  other  inhabitants  of  the  township  of  the  Northern  Liberties  to 
participate  therein,  or  to  derive  any  advantage  from  the  use  of 
the  said  landings.  That  your  petitioners  represent  the  inhabitants 
of  the  district  of  Spring  Garden,  and  the  townships  of  the  North- 
ern Liberties  and  Penn,  which  are  included  within  the  geographi- 
cal limits  of  the  former  township  of  the  Northern  Liberties,  for 
the  use  of  the  inhabitants  of  which  the  said  landings  and  rents 
and  income  thereof  were  held  in  trust,  and  are  entitled  to  a 
rateable  share  and  proportion  of  and  in  the  landings  and  public 
landing  fund  aforesaid,  and  the  income  and  moneys  derived 
therefrom,  to  enable  them  to  purchase  and  improve  public  land- 
ing places  within  their  respective  limits  for  the  use  of  the  pub- 
lic, agreeably  to  the  intention  and  purpose  of  the  Northern  Lib- 
erties, to  the  east,  and  along  the  river  Schuylkill,  which  bounds 
the  said  district  of  Spring  Garden  and  township  of  Penn,  to  the 
west. 

Your  petitioners  therefore,  respectfully  pray,  that  under  the 
provisions  of  the  acts  of  Assembly,  passed  on  the  12th  day  of 
April,  A.  D.  1828,  and  on  the  8th  day  of  April,  1833,  a  citation 
and  reasonable  notice  may  be  given  to  the  said  commissioners  of 
the  incorporated  district  of  the  Northern  Liberties,  and  to  the 
commissioners  and  inhabitants  of  the  Kensington  district  of  the 
Northern  Liberties,  notifying  them  to  appear  before  this  honor- 
able court,  on  Monday  the  23d  December,  1883,  to  show  cause, 
why  the  said  court  should  not  proceed  to  inquire  into  the  claims 
of  your  petitioners  to  a  rateable  portion  or  part  of  said  landings, 


1835.]  OF  PENNSYLVANIA.  30 

(Spring  Gardens.  The  Northern  Liberties.) 

and  public  landing  fund,  and  the  rents,  income,  and  interest 
thereof,  why  an  account  should  not  be  taken  of  the  same,  and  to 
order  and  decree  that  such  share  shall  be  granted,  conveyed, 
transferred  and  paid  to  your  petitioners,  or  applied  for  their  use 
and  benefit,  and  why  appraisers  and  auditors  be  not  appointed,  to 
appraise  and  value  the  said  landings,  and  any  other  landing  or 
landings,  purchased  by  the  said  commissioners  of  the  incorporated 
district  of  the  Northern  Liberties,  out  of  the  funds  arising  from 
the  same,  and  to  proceed  as  in  said  act  *of  April  12th,  r*o-j-i 
1828,  is  directed,  and  such  other  relief  give  in  the  prem-  L  c 
ises  .as  equity  and  justice  may  require. 

H.  J.  WILLIAMS, 
ELI  K.  PRICE, 

For  the  Petitioners. 
December  16,  1833. 

The  answer  of  the  commissioners  of  the  incorporated  district 
of  the  Northern  Liberties,  to  the  amended  petition,  set  forth  as 
follows : 

That  the  hay  scale  landing,  and  the  landing  south  of  Callow- 
hill  street,  mentioned  in  the  said  petition,  were  purchased  with 
public  money  by  virtue  of  the  act  of  1768,  and  its  supplements, 
and  were  heretofore  held  by  the  county  commissioners  in  trust 
for  the  public,  and  not  exclusively  or  particularly  for  the  inhabi- 
tants of  any  county,  township,  or  other  portion  of  the  common- 
wealth. The  said  landings  and  the  funds  arising  from  them,  were 
always  subject  to  the  disposal  of  the  General  Assembly  of  the 
commonwealth,  until  the  passage  of  the  act  of  1819,  to  be  pre- 
sently referred  to. 

During  the  period  of  nearly  half  a  century,  which  elapsed  be- 
tween the  years  1768  and  1819,  the  legislature  repeatedly  exer- 
cised the  right  of  controlling  the  management  and  directed  the 
mode  of  letting  out  the  said  landings,  of  selling  such  part  as  they 
thought  fit,  and  of  disposing  of  the  funds  arising  therefrom; 
several  acts  of  Assembly  having  been  passed  in  that  interval,  for 
these  various  purposes,  to  which  your  respondents  beg  leave  to  be 
considered  as  referring. 

Down  to  the  year  1819,  the  said  landings,  were  by  the  legisla- 
ture placed  and  continued  under  the  immediate  government  of  the 
county  commissioners,  assisted  by  any  three  justices  of  the  peace 
of  the  county,  who  were  not  required  to  be  residents  of  or  ap- 
pointed for  any  particular  part  of  the  county. 

In  fact,  your  respondents  aver  that  until  long  after  the  year 
1819,  it  was  never  doubted  but  that  the  legislature  had  at  the 
time  of  the  passing  of  the  act  of  that  year,  mentioned  in  the 
petition,  the  full  and  entire  authority  to  dispose  of  the  said  land- 


31  SUPREME  COURT  [Dec.  TV/-,,/, 

(Spring  Garden  r.  The  Northern  Liberties.) 

ings  and  the  funds  arising  therefrom,  as  the  absolute  property  of 
the  commonwealth. 

Your  respondents  further  represent  that  in  the  year  1768,  and 
until  the  year  1808,  the  township  of  the  Northern  Liberties  in- 
cluded within  its  bounds,  the  whole  territory  as  stated  in  the  pe- 
tition aforesaid.  In  October,  1808,  the  court  of  Quarter  Ses- 
sions of  the  county  of  Philadelphia,  erected  the  western  part  of 
the  Northern  Liberties,  into  a  new  township  called  Penn ;  a  part 
of  which  was,  in  the  year  1813,  incorporated  as  the  district  of 
Spring  Garden,  and  the  remainder  is  still  known  as  the  township 
of  Penn;  and  by  the  13th  section  of  an  act  passed  on  the  1st  day 
i-fcqo-i  of  April,  1811,  it  was  (inter  *alia)  enacted  that  the  town- 
J  ship  of  Penn,  should  be,  for  all  intents  and  purposes,  sep- 
arated from  the  Northern  Liberties. 

Your  respondents  further  represent,  that  on  the  16th  of  March, 
1819,  the  funds  accruing  under  the  provisions  of  the  act  of  1768, 
aforesaid,  were  invested  in, 

1.  The  hay  scale  landing,  part  of  which  had  been  sold  in  the 
year  1801,  under  the  authority  of  the  legislature. 

2.  The  landing  south  of  Callowhill  Street. 

3.  The  landing  at  the  foot  of  Shackamaxon  Street,  in  the  now 
district  of  Kensington. 

And  the  county  commissioners  had  also  in  their  hands,  a  sum 
in  cash,  as  stated  in  the  said  petition;  but  the  said  fund  had  not 
accrued  entirely  from  the  hay  scale  landing,  and  the  landing 
south  of  Callowhill  Street,  as  is  alleged  in  the  said  petition,  a 
large  part  thereof  having  arisen  from  the  public  landing  at  the 
end  of  Callowhill  Street,  which  the  county  commissioners  by  the 
act  of  1768,  had  been  authorized  to  improve  and  let,  for  the  same 
uses  as  were  provided  in  regard  to  the  hay  scale  landing,  and  in 
the  new  disposition  of  the  fund  directed  by  the  act  of  1796, 
(mentioned  in  the  said  petition),  the  surplus  income  of  the  said 
landing  at  the  end  of  Callowhill  Street,  was  included. 

By  the  act  of  March  16,  1819,  (referred  to  in  the  said  peti- 
tion,) the  hay  scale  landing,  and  the  landing  south  of  Callowhill 
Street,  were  expressly  by  name  vested  in  your  respondents,  who 
were  thereby  directed  (when  the  funds  arising  therefrom  should 
be  sufficient,  beyond  repairs  and  improvements,  for  that  purpose,) 
to  purchase  and  improve  other  landings  within  the  township  of  the 
Northern  Liberties,  which  then  included  and  still  includes,  the  in- 
corporated district,  the  Northern  Liberties,  the  present  district  of 
Kensington,  and  the  present  unincorporated  part  of  the  township 
of  the  Northern  Liberties,  but  no  part  of  the  district  of  Spring 
Garden,  or  township  of  Penn. 

A  saving  clause,  (similar,  as  your  respondents  are  advised,  to 
that  which  is  generally  inserted  in  acts  of  Assembly,  by  which 


1835.]  OF  PENNSYLVANIA.  32 

(Spring  Garden  v.  The  Northern  Liberties.) 

grants  are  made  of  corporeal  hereditaments  to  individuals  or  cor- 
porations,) was  inserted  in  the  said  act  of  1819,  saving  to  all  per- 
sons their  rights  in  the  estates  thereby  vested  in  your  respondents 
as  above  stated ;  but  your  respondents  do  absolutely  deny  that  the 
petitioners,  or  any  one  or  more  of  them,  or  the  inhabitants  re- 
siding within  the  bounds  of  the  said  district  and  townships  as 
they  existed  prior  to  the  decision  of  the  Northern  Liberties,  had 
any  right  or  claim  whatever  in,  or  to  the  said  landings,  or  the 
funds  arising  therefrom,  or  any  other  or  greater  use  thereof,  than 
was  and  is  enjoyed  by  them  in  common  with  all  the  good  citizens 
of  this  commonwealth,  not  only  of  the  said  public  landings,  but  of 
all  other  public  landings,  and  of  all  the  public  highways  also 
throughout  the  state. 

*  The  legislature  had  clearly  the  right  which  they  exer-  r^oqn 
cised,  of  vesting  the  said  landings  in  your  respondents.  •- 
It  was  no  extraordinary  act  of  authority,  for  it  hath  been  usual, 
when  a  portion  of  territory  hath  been  incorporated,  to  vest  in  the 
corporation  the  public  landings,  and  all  the  trusts  necessarily 
connected  with  the  care  and  management  of  them  and  the  public 
streets  and  highways,  within  the  bounds  of  the  district  incor- 
porated. 

Thus  by  the  act  of  1820,  incorporating  the  district  of  Kensing- 
ton, all  public  landings  at  the  ends  of  streets  then  laid  out  or 
thereafter  to  be  laid  out  within  the  said  district,  and  all  landings, 
wharves,  &c.,  whereof  any  person  was  seized  in  trust  for  the  use 
of  the  inhabitants  thereof,  were  vested  in  the  commissioners  of 
the  said  district ;  a  saving  clause  being  added  which  is  in  terms 
the  same  as  that  in  the  act  of  1819,  above  referred  to. 

Under  this  act  of  1820,  the  commissioners  of  the  district  of 
Kensington,  among  other  public  landings,  became  possessed  of 
the  one  at  the  foot  of  Shackamaxon  Street,  which  was  paid  for 
out  of  the  landing  fund  of  1768,  and  which  they  hold  for  their 
own  emolument,  clear  of  all  obligation  to  invest  the  proceeds  in 
the  purchase  of  other  landings  in  the  township  of  the  Northern 
Liberties  or  any  where  else. 

As  another  instance  your  respondents  represent  that  the  west- 
ern extremity  of  Coates'  Street,  and  another  landing  north  of  the 
same,  both  within  the  bounds  of  the  incorporated  district  of 
Spring  Garden,  were  heretofore  dedicated  to  public  use,  as  public 
landings;  and  that  long  since  the  passage  of  the  act  of  1828, 
referred  to  in  the  petition,  to  wit,  on  the  twelfth  of  March,  1830, 
the  commissioners  of  the  district  of  Spring  Garden  procured  the 
passage  of  an  act  vesting  both  the  said  public  landings  in  the  said 
commissioners,  with  power  to  improve,  rent,  dispose  of,  and  in  all 
respects  to  control  and  govern  the  same,  without  saving  the 
rights  of  any  body.  The  omission  of  the  saving  clause,  and  the 

VOL.  i. — 3 


33  SUPREME  COURT  [Dec.  Term, 

(Spring  Garden  t>.  The  Northern  Liberties.) 

extensive  powers   conferred   upon   the  commissioners,  being,  as 
your  respondents  are  advised,  very  unusual,  if  not  unprecedented. 

Your  respondents  do  not  claim  to  be  so  highly  favoured  as 
either  of  the  districts  which  have  been  mentioned.  In  regard  to 
the  public  landings  mentioned  in  the  petition,  they  are  legally  and 
equitably,  absolutely  vested  in  your  respondents,  no  otherwise  in 
trust  for  the  public  than  as  all  the  estates  of  like  nature,  which 
your  respondents  or  any  similar  corporation  holds,  are  in  trust 
for  the  public — your  respondents  being  a  public  body,  created  and 
existing  solely  for  managing  the  estates  held  for  the  inhabitants 
of  the  incorporated  district  and  the  administration  and  discharge 
of  the  public  trusts,  which  are  by  law  confided  to  them.  In 
regard  to  the  surplus  income  of  the  said  landings,  the  legislature 
r*'441  nas  Directed  y°ur  respondents  *to  invest  the  same  from 
'  time  to  time,  at  their  discretion,  in  the  purchase  of  other 
landings  within  certain  bounds. 

Your  respondents  have  faithfully  obeyed  and  intend  to  perse- 
vere in  obeying  this  injunction,  and  are  always  ready  and  willing 
to  render  an  account  of  their  proceedings  in  this  behalf  to  the 
public  authorities  of  the  commonwealth,  who  alone  are  entitled  to 
demand  it. 

Your  respondents  do  humbly  submit  that  they  are  in  no  way 
bound,  nor  can  be  required  to  render  an  account  to  the  now  peti- 
tioning townships  and  districts,  or  any  of  them. 

The  inhabitants  residing  in  the  said  townships  and  districts,  are 
in  the  enjoyment,  for  their  own  benefit  and  emolument,  of  all  the 
public  landings  within  their  respective  limits. 

Your  respondents  do  earnestly  and  respectfully  deny  that  the 
inhabitants  of  said  townships  and  districts  are  in  law,  justice,  or 
equity  entitled  to  take  in  effect  the  fund  of  1768,  with  its  accu- 
mulation, now  actually  vested  by  law  in  your  respondents,  aad 
divide  the  same  among  their  respective  boards  of  commissioners 
and  supervisors  of  roads,  to  be  expended  for  any  purposes  which 
the  said  commissioners  and  supervisors  respectively  may  think 
proper,  thus  without  any  warrant  or  colour  of  right  for  so  doing, 
totally  diverting  the  said  fund  from  the  purposes  for  which  it  was 
originally  raised  from  the  people  of  this  commonwealth,  and 
violating  the  sacred  and  chartered  rights  of  your  respondents. 

And  until  some  better  reason  shall  be  assigned  therefore,  than 
the  fact  that  your  respondents  represent  a  district  which  is  of 
email  territorial  extent  in  comparison  with  the  aggregate  bulk  of 
the  townships  and  districts  here  arrayed  against  them — your 
respondents  must  beg  leave  humbly  to  continue  to  deny  that  the 
said  townships  and  districts  are  in  law,  justice,  or  equity,  entitled 
to  demand  that  the  public  landings  in  question  shall  be  appraised, 
and  that  your  respondents,  to  whom  they  do  now  by  law  actually 


1835.]  OF  PENNSYLVANIA.  34 

(Spring  Garden  ID.  The  Northern  Liberties.) 

and  confessedly  belong,  shall  be  compelled  to  purchase  them  over 
again  from  those  to  whom  they  never  did  belong,  and  who  never 
had  any  right  or  claim  in  or  to  them,  and  this  too,  while  all 
other  public  landings,  so  far  as  is  known,  in  the  commonwealth, 
situated  within  the  bonds  of  any  corporation,  and  especially  of 
the  districts  aforesaid,  have  been  fully  vested  by  the  legislature  in 
such  corporations,  on  more  favourable  terms  than  those  which 
have  been  annexed  to  the  grant  of  the  landings  in  question  to 
your  respondents. 

Your  respondents  observe  many  allegations  in  the  said  petition 
which  are  entirely '  unfounded,  but  which  they  do  not  deem  it 
necessary  for  them  at  this  time  to  notice  particularly,  but  beg 
that  they  may  be  considered  as  expressly  denying  every  state- 
ment in  the  said  petition,  which  they  have  not  in  this  answer  ad- 
mitted to  be  true. 

Wherefore  your  respondents  humbly  pray  to  be  hence  dis- 
missed, *with  their  reasonable  costs  and  charges  in  this  r*qr-i 
behalf  most  wrongTully  sustained. 

WM.  M.  MEREDITH, 
CHARLES  NAYLOR, 
For  the  Incorporated  District  of  N.  Liberties. 

December  23,  1833. 

At  the  same  term  the  following  replication  was  filed : 

The  replication  of  the  Commissioners  of  the  District  of  Spring 
Garden  and  of  •  the  supervisors  of  the  public  roads  and  high- 
ways in  the  unincorporated  townships  of  the  Northern  Liberties 
and  Penn,  repliants,  to  the  answer  of  the  commissioners  and 
inhabitants  of  the  incorporated  districts  of  the  Northern  Liberties, 
respondents. 

The  repliants  above  named  now  and  at  all  times  hereafter  saving 
and  reserving  to  themselves  all  and  all  manner  of  benefit  and  ad- 
vantage of  exception  to  the  manifold  errors  and  uncertainties, 
imperfections  and  insufficiencies,  in  the  said  answer  of  the  respond- 
ents for  replication  thereto  or  unto  so  much  thereof  as  they  are 
advised,  is  material  for  them  to  make  reply,  say  : — 

That  reserving  the  truth  and  sufficiency  of  all  matters  in  their 
said  petition  alleged,  all  which  they  are  ready  to  maintain  and 
prove,  as  may  be  directed  by  this  Honourable  Court,  and  pray- 
ing as  in  their  petition  they  have  already  prayed  ;  they  deny  that 
the  said  landings  in  the  said  petition  mentioned,  or  in  the  said 
answer  referred  to,  or  any  of  them  were  purchased  with  public 
monies,  or  that  they  or  any  of  them  were  held  by  the  county 
commissioners  in  trust  for  the  public  generally,  or  that  they,  or 
any  of  them,  were  subject  to  the  absolute  disposal  of  the  general 
assembly  of  this  commonwealth — but  aver  and  declare  that  the 


35  SUPREME  COURT  [Dec.  Term, 

(Spring  Garden  «.  The  Northern  Liberties.) 

hay  scale  landing,  and  the  landing  south  of  Callowhill  Street, 
were  purchased  with  monies  raised  by  virtue  of  the  act  of  1768, 
under  a  pledge,  therein  expressly  set  forth,  that  the  same  shall  be 
exclusively  appropriated  to  the  purchase  of  landings  in  the  town- 
ships of  the  Northern  Liberties  for  the  convenience  of  the  inhabi- 
tants of  the  same  and  for  the  improvement  of  the  landings  so 
purchased,  and  of  that  at  the  foot  of  Callowhill  Street; — and 
that  all  and  every  part  of  the  said  landings,  and  the  rents,  issues, 
and  profits  thereof,  and  all  the  funds  derived  and  obtained  there- 
from, with  their  interest  and  accumulation  were  always  held  and 
admitted  to  be  held  by  the  county  commissioners,  and  ought  now 
to  be  held  by  the  respondents  exclusively  in  trust  for  the  use 
and  benefit  of  the  inhabitants  of  the  township  of  the  Northern 
Liberties,  as  the  same  existed  and  was  laid  out  in  the  years  1768 
and  1796. 

Your  repliants  admit  that  the  legislature  exercised,  as  well  they 
might,  the  right  to  control  the  management,  and  the  leasing  of 
the  said  landings — and  to  authorize  a  sale  of  such  part  thereof  as 
f*3fiT  *ney  *thought  beneficial  to  those  interested  in  the  trust; 
J  but  they  expressly  deny  that  the  legislature  at  any  time 
exercised  the  power  or  claimed  the  right  to  dispose  of  the  said 
landings,  or  any  part  thereof,  or  of  the  funds  derived  therefrom, 
or  any  part  thereof,  in  any  manner  or  way  in  the  slightest  degree 
affecting  OY.  interfering  with  the  trusts  of  the  same  as  herein- 
before stated. 

And  your  repliants  further  say,  that  the  respondents  often 
have  admitted  and  agreed,  that  before  the  said  act  of  1819,  the 
said  landings,  and  the  funds  derived  therefrom,  were  held  by 
the  county  commissioners  in  trust  for  the  inhabitants  of  the 
township  of  the  Northern  Liberties ;  and  that  since  the  said  act 
of  1819,  they  the  said  respondents  hold  them  subject  to  the  same 
uses  and  trusts. 

And  your  repliants  further  replying,  deny  that  the  township  of 
the  Northern  Liberties  included,  from  the  year  1768,  to  the  year 
1808,  within  its  bounds  the  whole  territory  of  which  it  had 
formerly  been  composed — and  in  fact  say,  as  they  have  before 
said,  that  the  said  township  of  the  Northern  Liberties  included 
the  whole  territory  stated  in  the  petition,  from  the  year  1768, 
until  the  year  1803,  when  the  inhabitants  of  that  portion  thereof, 
now  included  within  the  incorporated  district  of  the  Northern 
Liberties,  were  constituted  a  corporation,  by  the  name,  style  and 
title  of  "  the  commissioners  and  inhabitants  of  that  part  of  the 
township  of  the  Northern  Liberties  lying  between  the  west  side 
of  Sixth  Street  and  the  Delaware  River,  and  between  Vine  Street 
and  the  Cohocksinck  Creek ; "  and  so  continued  until  the  year 
1819,  when  the  inhabitants  of  the  said  district  obtained  a  new 


1835.]  OF  PENNSYLVANIA.  36 

(Spring  Garden  v.  The  Northern  Liberties.) 

act  of  incorporation,  continuing  for  some  time  the  former  officers, 
and  confirming  all  the  rules,  regulations,  and  ordinances  by  them 
heretofore  made — by  virtue  of  which  said  several  acts  of  assem- 
bly, the  said  incorporated  district  of  the  Northern  Liberties,  was, 
and  has  continued  to  be,  since  the  year  1803,  totally  and  entirely 
separated  from  the  township  of  the  Northern  Liberties. 

Your  repliants  admit,  that  in  October,  1808,  the  court  of  Quar- 
ter Sessions  of  the  county  of  Philadelphia,  created  the  western 
part  of  the  former  township  of  the  Northern  Liberties  into  a  new 
township  called  "  Penn,"  a  part  of  which  was  in  1813,  incorpo- 
rated as  the  district  of  Spring  Garden,  and  that  the  remainder  is 
still  known  as  the  township  of  Penn — but  they  utterly  deny  that 
the  said  township  of  Penn  was  separated  from  the  township  of  the 
Northern  Liberties,  by  the  act  of  1811,  for  any  purpose  except 
in  relation  to  the  elections  to  be  therein  held,  after  the  passage 
of  the  said  act,  or  that  the  said  district  or  townships  represented 
by  your  repliants,  were  for  any  purposes  affecting  their  rights  to 
the  landing  or  landing  fund  herein  referred  to,  separated  from 
the  township  of  the  Northern  Liberties  ;  and  they  aver  that  the 
said  district  of  Spring  Garden,  and  the  township  of  Penn,  and  the 
present  Northern  Liberties,  for  all  purposes  necessary  to  support 
this  application,  have  always  *continued  to  be,  and  still  r^o^T 
are,  a  part  of  the  township  of  the  Northern  Liberties  as  ^  J 
the  same  existed  in  1768. 

And  your  repliants  further  replying,  in  fact  say,  that  they 
know  nothing  in  relation  to  the  landing  or  the  funds  derived  and 
proceedings  therefrom  mentioned  by  the  respondents,  except  what 
is  stated  in  their  petition — since  the  act  of  1819,  whereby  the 
respondents  were  appointed  trustees  as  before  stated  ;  they  have 
never  given,  but  have  always  refused  to  give,  any  account  of  the 
said  landings,  or  of  the  rents  and  profits  thereof,  or  of  the  sums 
received  from  the  county  commissioners,  or  of  the  interest  and 
accumulation  thereof,  nor  have  they,  although  the  funds  have 
been  amply  sufficient,  ever  applied  the  same,  or  any  part  thereof, 
to  any  of  the  purposes  for  which  they  were  to  hold  in  trust,  but 
have  appropriated  them  to  uses  and  purposes  contrary  to,  and  in 
violation  of  the  provisions  of  the  several  acts  of  assembly,  in 
the  petition  aforesaid,  and  in  this  replication,  mentioned  and  re- 
ferred to. 

Your  repliants  admit,  as  they  have  before  admitted,  that  by 
the  act  of  March,  1819,  the  landings  aforesaid  in  the  said  petition 
mentioned,  were  transferred  to  the  respondents  upon  the  trusts 
for  which  they  were  originally  designed,  and  that  a  clause  (which 
is  undoubtedly  usual  under  similar  circumstances)  is  therein  con- 
tained, saving  nevertheless  to  all  and  every  person  and  persons, 
bodies  public  and  corporate,  his,  her,  and  their  rights  in  all  and 


37  SUPREME  COURT  \Vec.  Term, 

(Spring  Garden  e.  The  Northern  Liberties.) 

every  part  (inter  alia)  of  the  estates  above  referred  to — other 
than  so  far  as  it  vests  the  trusts  thereof  in  the  hands  of  the  com- 
missioners of  the  said  incorporated  district.  Your  repliants  in- 
sist that  the  object  of  this  clause  was  to  prevent  the  assumption 
of  the  very  rights  now  claimed  by  the  respondents,  to  hold  and 
enjoy  the  said  landings  as  their  absolute  property — and  that  it  is 
of  the  neglect  and  disregard  of  this  provision,  in  the  said  act 
contained,  that  they,  among  other  things,  complain.  They  more- 
over deny,  that  the  landing  fund  in  the  hands  of  the  county  com- 
missioners in  1819,  was  paid  over  to  the  said  respondents,  in 
accordance  with  the  directions  of  any  act  of  assembly  whatever, 
or  that  they  have  any  title  or  right  whatever  to  the  same,  or  its 
interest  or  accumulation.  This  fund  was  transferred  by  the  county 
commissioners  to  the  said  respondents,  under  a  belief  that  they 
were  authorized  so  to  do  by  the  said  act  of  1819,  and  this  is  all 
that  was  intended  to  be  admitted  by  your  repliants  in  their  pe- 
tition— but  no  such  authority  was  by  the  said  act  given. 

Your  repliants  know  nothing  of  the  landing  at  the  end  of 
Shackamaxon  Street,  nor  of  the  allegations  in  relation  thereto,  in 
the  said  answer  of  the  respondents  contained,  and  can  therefore 
neither  admit  nor  deny  them.  If  they  shall  be  considered  at  all 
material  to  the  present  controversy,  they  pray  that  they  may  be 
proved  and  maintained  according  to  law,  and  as  this  honourable 
court  may  award. 

l"*381  *"^s  to  ^e  lading  a*  Coates  Street  on  the  Schuylkill, 
J  and  that  of  the  north  referred  to  by  the  respondents — 
your  repliants  represent  that  they  were  laid  out  many  years 
since  as  public  landings  by  Tench  Francis,  then  the  owner  of  a 
large  tract  of  land  in  that  vicinity  (since  included  within  the 
boundaries  of  the  district  of  Spring  Garden,)  for  the  common 
use  of  the  owners  and  occupiers  of  that  estate — no  one  had  either 
the  right,  ability,  or  inclination  to  improve  them  so  as  to  render 
them  serviceable  as  landings,  and  they  remained  for  many  years 
useless  to  those  for  whom  they  were  intended.  The  commissioners 
of  the  district  of  Spring  Garden,  were  then  requested  by  the 
owners  and  occupiers  of  the  property  aforesaid,  to  take  these 
landings  under  their  charge,  and  as  an  evidence  of  their  wishes, 
released  to  them  all  their  interest  therein.  Upon  these  facts 
being  laid  before  the  legislature,  they  passed  the  act  of  twelfth 
of  March,  1820,  not  by  the  procurement  of  your  repliants,  or  of 
any  one  else,  but  as  your  repliants  verily  believe,  because,  as  in 
their  corporate  capacity — the  commissioners  of  the  district  of 
Spring  Garden  represented  the  very  persons  entitled  to  these 
landings  ;  as  they  had  been  requested  to  accept  releases  of  their 
rights  and  take  them  under  their  care,  the  legislature  thought  it 
just,  equitable,  and  expedient — no  saving  clause  was  inserted, 
because  there  was  no  rights  to  save.  Since  the  passage  of  this 


1835.]  OF  PENNSYLVANIA.  38 

(Spring  Garden  v.  The  Northern  Liberties.) 

act,  the  said  commissioners,  under  the  powers  conferred  on  them, 
have  erected  wharves  on  one  of  these  landings  at  a  great  expense, 
and  paid  them  from  their  corporate  funds,  raised  by  taxes  upon 
the  district  of  Spring  Garden.  They  have  had  no  public  landing 
fund  from  which  to  defray  these  expenses — no  trust  estates  have 
been  transferred  to  them,  to  be  applied  to  these  objects — all  the 
public  landings  they  possess,  have  been  purchased  arid  paid  for 
from  their  corporate  estates,  or  granted  to  them  by  individuals — 
and  they  have  heard  no  charge  by  any  one  interested  in  them, 
that  the  act  aforesaid  was  either  contrary  to  their  wishes  or  in 
violation  of  their  rights.  As  no  semblance  or  pretence  of  claim 
to  any  part  of  these  landings  has  been  suggested  in  the  respond- 
ents, your  repliants  cannot  perceive  the  relevancy  or  materiality 
of  any  reference  thereto. 

Your  repliants  assert  that  there  are  many  landings  at  the  ends 
of  streets,  within  the  limits  of  the  district  and  townships  they 
represent,  which  if  purchased  and  improved,  would  be  of  great 
public  accommodation  and  advantage — but  the  legislature  has 
never  in  their  cases,  thought  it  expedient  to  give  them  these 
landings,  unless  with  the  consent  of  the  individuals  OAvning  the 
soil,  or  after  providing  for  a  full  and  adequate  compensation. 
The  object  of  the  landing  fund  was  to  enable  the  inhabitants  of 
the  township  of  the  Northern  Liberties  to  make  this  compensa- 
tion, and  a  proper  application  of  the  monies  belonging  to  it  since 
1819,  would  have  procured  for  their  use,  the  most  valuable  and 
important  positions.  Among  other  grievances  occasioned  by  the 
breach  of  trust  of  which  *your  repliants  complain,  they 


will  now  be  under  the  necessity  of  paying  double  or  treble 


[*39] 


the  amount,  which  in  1819,  or  soon  after,  would  have  made  all 
the  requisite  purchases. 

The  respondents  have,  in  the  mean  time,  contrary  to  the  condi- 
tions of  the  said  trust,  procured  to  be  vested  in  them  every  land- 
ing at  the  end  of  the  streets,  within  their  corporate  limits,  and 
although  thus  so  amply  supplied,  have  never  condescended  to  at- 
tend to  the  wants  or  wishes  of  any  of  the  Cestuis  que  trust,  whose 
property  they  have  applied  for  their  own  private  use  and  benefit. 

Wherefore,  your  repliants  aver  and  will  prove,  that  the  said 
answer  is  uncertain,  untrue,  and  insufficient  to  be  replied  unto  by 
your  repliants,  without  that  any  matter  or  thing  whatever,  in  the 
said  answer  contained,  material  and  effectual  in  the  law  to  be  re- 
plied unto,  and  confessed  and  avoided,  traversed  or  denied,  is  true 
— all  which  matter  and  things  these  repliants  are  and  will  be  ready 
to  aver  and  prove,  as  this  honourable  court  shall  award — and  hum- 
bly pray  as  they  have  already  prayed. 

H.  J.  WILLIAMS,  )  ^      „  .-,• 

ELI  K.  PRICE.  '  \  Mr  Pet^t^oners. 

February  20,  1834. 


89  SUPREME  COURT  [Dec.  Term, 

(Spring  Garden  ».  The  Northern  Liberties.) 

The  following  rejoinder  was  filed: 

The  rejoinder  of  the  commissioners  and  inhabitants  of  the  in- 
corporated district  t>f  the  Northern  Liberties  to  the  replication  of 
the  commissioners,  &c.  of  Spring  Garden,  and  the  supervisors  of 
the  unincorporated  township  of  the  Northern  Liberties  respect- 
fully sheweth: 

That  the  rejoinants  do  entirely  and  absolutely  deny  all  the 
statements  and  allegations  contained  in  the  said  replication,  which 
are  inconsistent  with  or  contradictory  to  any  part  of  the  answer 
heretofore  made  by  the  rejoinants  to  the  petition  in  this  case,  and 
the  rejoinahts  do  hereby  re-affirm  and  aver  to  be  true  all  the  facts 
set  forth  in  their  said  answer. 

And  for  rejoinder  to  the  several  new  but  irrelevant  matters  in 
the  said  replication,  or  so  much  thereof  as  they  are -ad vised  it  is 
material  for  them  to  rejoin  to,  the  rejoinants  say, 

1st.  That  the  rejoinants  have  never  at  any  time  admitted  or  agreed 
that  before  the  said  act  of  1819,  the  said  landings  and  the  funds 
derived  therefrom  were  held  by  the  county  commissioners  in  trust  for 
the  inhabitants  of  the  township  of  the  Northern  Liberties,  nor  that 
since  the  said  act  of  1819,  they,  the  said  rejoinants  so  held  them. 

2d.  That  the  landing  fund  in  the  hands  of  the  county  commis- 
sioners in  1819,  was  paid  over  by  them  to  the  rejoinants  in  pur- 
suance of  the  provisions  of  the  act  of  1819,  before  mentioned, 
and  that  such  payment  was  authorized  by  that  act. 
F*401  *^'  ^e  rej°inants  deny  that  the  incorporated  district 
*  of 'the  Northern  Liberties  has  ever  ceased  (for  any  of  the 
purposes  material  in  this  case)  to  be  a  part  of  the  township  of  the 
Northern  Liberties. 

4th.  The  rejoinants  aver  that  all  the  landings  at  the  ends  of 
streets,  within  the  limits  of  the  district  of  Spring  Garden  and 
Kensington,  are  vested  in  the  respective  corporations  of  those 
districts,  and  that  they  all  became  so  vested  without  expense  to 
either  of  the  said  corporations. 

5th.  The  rejoinants  deny  that  all  the  landings  at  the  ends  of 
the  streets,  within  their  corporate  limits,  have  been  purchased  out 
of  the  binding  fund  in  question ;  they  have  never  misapplied  or 
misappropriated  that  fund,  or  any  part  of  it,  nor  in  any  respect, 
violated  the  laws  of  the  land,  under  the  sanction  of  which  they 
hold  the  same,  and  the  landings  from  which  it  has  arisen,  as  set 
forth  in  the  act  of  1819,  before  mentioned. 

Wherefore,  your  rejoinants  aver  and  will  prove  that  the  said 
replication  is  uncertain,  untrue  and  insufficient,  and  again  humbly 
pray  this  honourable  court,  as  in  their  answer  they  have  hereto- 
fore already  prayed.  WM.  M.  MEREDITH, 

CHARLES  NAYLOR, 
For  the  Incorporated  District  of  N.  Liberties. 

February  20, 1834. 


1835.]  OF  PENNSYLVANIA.  40 

(Spring  Garden  v.  The  Northern  Liberties.) 

The  questions  arising  upon  these  pleadings  were  argued  at  con- 
siderable length,  by  Mr.  Miles,  Mr.  Price,  Mr.  J.  M.  Reed  and 
Mr.  Williams,  for  the  several  petitioners,  and  by  Mr.  Goodman 
and  Mr.  W.  M.  Meredith,  (with  whom  was  Mr.  Naylor^)  for 
the  defendants. 

For  the  petitioners,  it  was  contended  that  upon  the  true  con- 
struction of  the  several  acts  of  assembly  relating  to  the  township 
of  the  Northern  Liberties,  which  were  cited  and  commented  upon,  ( 
the  district  and  townships  which  once  formed  part  of  the  old  town- 
ships of  the  Northern  Liberties,  though  now  divided  for  municipal 
purposes,  were  equally  entitled,  with  the  incorporated  district,  to 
the  profits  of  the  landing  places.  The  legislature  never  could 
have  intended  that  this  large  fund  should  be  devoted  exclusively 
to  the  comparatively  small  space  occupied  by  the  defendants, 
while  the  remaining  fronts  on  the  Delaware,  and  the  whole  front 
on  the  Schuylkill  were  unprovided  for.  It  was  clearly  the  in- 
tention that  tolls  should  be  taken  at  the  respective  wharves,  and 
applied  to  the  use  of  some  part  or  whole  of  the  township.  Now, 
in  1768,  the  legislature  sat  in  Philadelphia;  and  the  framers 
of  the  act  knew  that  the  wharves  in  the  city  were  rented  by  the 
corporation,  and  the  rents  and  profits  applied  to  the  ease  of  the 
taxes  throughout  the  city.  Such  was  the  intention  with  respect 
to  the  township.  Spring  Garden  *and  Kensington  have  r*,<i-i 
both  landing  places,  one  on  the  Delaware,  and  the  other  on  L 
the  Schuylkill,  to  pay  for  which  they  are  entitled  to  share  in  this 
fund.  If  the  words  of  the  acts  are  to  be  taken  literally,  the  un- 
incorporated part  of  the  township  of  th'e  Northern  Liberties 
would  be  entitled  to  the  whole.  This  was  the  case  of  a  divided 
township,  but  the  principle  in  respect  to  the  common  property  is 
the  same  as  in  the  case  of  the  division  of  an  empire ;  and  there 
it  is  well  settled  that  existing  rights  are  not  forfeited.  2  Ruth- 
erford's Inst.,  b.  2,  c.  10,  s.  15 :  Grotius,  b.  2,  c.  9,  s.  9 ;  Pufien- 
dorf,  b.  8,  c.  12,  s.  5 ;  Domat,  b.  1,  tit.  15,  s.  8 ;  Vattel,  b.  1,  c. 
20,  s.  246  ;  3  Kent's  Com.  245 ;  9  Cranch,  52  ;  4  Wheaton,  94, 
95.  The  trust,  therefore,  was  intended,  for  the  benefit  of  all  the 
inhabitants  of  the  old  township ;  and  there  is  nothing  in  the  act 
of  1819  to  lead  to  the  conclusion  that  the  legislature  intended 
to  alter  it.  But  even  if  they  so  intended,  this  court  cannot  admit 
the  validity  of  an  act  which  would  divert  the  fund  from  its  original 
and  proper  objects.  To  this  point  were  cited  TJie  Dartmouth 
College  Case  (4  Wheat.  518,  629,  663) ;  Turret  v.  Taylor,  (9 
Cranch,  50,  332)  ;  Commonwealth  v.  Jarret,  (7  Serg.  &  R.  460)  ; 
Whitman  v.  Lex,  (17  Serg.  &  Rawle.  88)  ;  Estep  v.  Hinchman, 
(14  Serg.  &  R.  457).  The  following  authorities  were  also  re- 
ferred to  in  the  course  of  the  argument ;  Clifford  v.  Belsterling, 


41  SUPREME  COURT.  [Dec.  Term, 

(Spring  Garden  t>.  The  Northern  Liberties.) 

(2  Serg.  &  R.  108) ;  Angel  on  Corporations,  503;  3  Penn.  Rep. 
384;  17  Serg.  &  R.  404;  1  Vernon,  42,55;  2  Vernon  431; 
Com.  Dig.  Chancery,  4  W.  13;  1  Roper,  92;  Livingston  v. 
Moore,  (7  Peter's  Rep.  546) ;  Case  of  Carnal  a  Road,  (1  P.  A. 
Browne,  164) ;  2  Madd.  Chan.  125 ;  M'Girr  v.  Aaron,  (1  Penn. 
Rep.  49);  Hampshire  v.  Franklin,  (16  Mass.  Rep.  83);  2 
Kent's  Com.  223;  2  Atkyns,  87. 

For  the  defendants,  it  was  argued, 

1.  That  the  money  raised  by  the  act  of  1768,  was  public  money, 
and  as  such,  absolutely  subject  to  the  control  of  the  legislature. 

2.  That  the  landings  originally  purchased  by  the  county  com- 
missioners, were  expressly  in  trust  for  the  public  generally,  and  not 
for  the  inhabitants  of  any  particular  part  of  the  commonwealth. 

3.  That  the  landing  subsequently  purchased   by  the   county 
commissioners  out  of  the  proceeds  of  the  same  fund,  was,  in  like 
manner,  held  by  them  in  trust  for  the  public. 

4.  That  none  of  the  acts  of  Assembly  passed  between  1768 
and  1819,  made  any  change  in  this  respect. 

5.  That  by  the  act  of  1819,  the  landings  were  vested  in  the 
commissioners  of  the  Northern  Liberties,  and  that  the  legislature 
had  the  right  of  so  vesting  them. 

6.  That  the  commissioners  of  the  Northern  Liberties  held  the 
landing,  under  the  act  of  1819,  in  trust  for  the  public  at  large, 
so   far   as   that   all   the  inhabitants  of  the  commonwealth  were 
authorized  to  use  the  landings,  paying  the  regular  tolls  for  such 
r+4n~\  use ;  that  *the  commissioners  of  the  Northern  Liberties 

'  had,  under  the  act  of  1819,  the  right  to  receive  the  in- 
come and  manage  the  renting,  &c.,  of  the  landings.  The  direc- 
tion as  to  the  manner  of  investing  the  surplus  income,  was  a  mere 
legislative  direction,  and  created  no  trust  for  any  body. 

7.  The  complainants  (nor  any  other  part  of  the  territory  of 
the  old  Northern  Liberties,  not  included  in  the  incorporated  dis- 
trict of  the  Northern  Liberties)  never  were  cestui  que  trusts  of 
these  landings.     There  never  was  any  express  trust  declared  for 
them.     The  landings  were   not  bought  with  their  money,  and 
there  was,  therefore,  no  resulting  trust  for  them.     There  was  no 
trust  by  implication,  for  their  benefit.     They  are  absolutely  with- 
out the  shadow  of  a  right.     As  to  the  township  of  Penn,  and  dis- 
trict of  Spring  Garden,  they  are  not  even  included  within  the 
bounds  of  the  territory,  within  which,  by  the  act  of  1819,  the 
commissioners  of  the  Northern  Liberties  were  directed  to  expend 
the  surplus  income.     In  1819,  Penn  and  Spring  Garden  were 
not  within  the  township  of  the  Northern  Liberties. 

The   legislature   have   always  been  in  the  habit,  in   erecting 
municipal  corporations,  of  vesting  in  such  corporations  the  public 


1835.]  OF  PENNSYLVANIA.  42 

(Spring  Garden  v.  The  Northern  Liberties.) 

landings  within  their  bounds.  They  gave  to  Spring  Garden  the 
valuable  public  landing  at  the  foot  of  Coates  street.  They  gave 
to  Kensington  the  public  landings  at  the  ends  of  streets  within 
that  district.  The  Legislature  have  done  no  more  than  this,  in 
favour  of  the  incorporated  district  of  the  Northern  Liberties,  and 
why  should  they  have  done  less  ? 

The  defendants'  counsel  cited  the  following  cases :  Ehrenzeller 
v.  Union  Canal  Company,  (1  Rawle,  181)  ;  Kissler  v.  Kissler, 
(2  Watts, 323);  Barterv.  The  Commonwealth,  (3Penn.Rep.  259); 
Easton  ttoad  Case,  (3  Rawle,  195);  Irvine  v.  The  Turnpike  Com- 
pany, (2  Penn.  Rep.  470);  Runyv.  Schoenberyer,  (2  Watts,  23). 

The  opinion  of  the  court  was  delivered  by 

KENNEDY,  J. — The  proceeding  has  been  instituted  in  this  case, 
under  a  special  act  of  the  legislature,  passed  the  12th  of  April, 
1828,  for  the  purpose  of  having  it  enquired  into  and  determined 
by  this  court,  whether  or  not  the  complainants  have  a  right 
to  any  part  or  portion  of  the  value  or  income  of  the  public  wharf  or 
landing  place,  called  the  hay  scale  landing,  and  the  public  wharf 
or  landing  on  the  south  of  and  adjoining  Callowhill  street,  which 
lie  within  the  incorporated  district  of  the  Northern  Liberties,  and 
are  held  in  trust  by  the  board  of  commissioners  thereof.  That 
the  legal  title  to  these  wharves  and  landing  places  was  vested, 
and  still  continues  to  be  so,  in  the  board  of  commissioners  of  the 
incorporated  district  of  the  Northern  Liberties  by  the  thirty-sixth 
section  of  an  act  of  assembly,  passed  the  16th  of  March,  1819,  is 
admitted ;  *  but  the  great  question  raised  is,  for  whose  (-#40 -i 
use  was  it  so  invested  ?  The  complainants  contend  that  *- 
it  was  for  the  use  and  benefit  of  all  those  who  were  inhabitants 
'  within  the  geographical  limits  of  what  was  called  and  known  by 
the  name  of  the  Northern  Liberties  in  1768,  or  the  township  of 
the  Northern  Liberties  in  1796,  or  should  at  any  time  become 
such,  after  the  .first  of  these  dates.  The  commissioners  of  the 
incorporated  district  of  the  Northern  Liberties  allege,  on  the 
other  hand,  that  it  was  vested  in  them  for  the  use  of  the  public 
generally,  and  not  particularly  for  the  use  of  the  inhabitants  of 
what  was  then  called  the  Northern  Liberties,  or  the  township  of 
the  Northern  Liberties  at  any  time,  more  than  for  the  use  of  the 
inhabitants  of  any  other  part  of  the  State. 

As  to  the  claim  of  the  complainants,  notwithstanding  their 
counsel  have  advocated  it  with  great  zeal  and  earnestness,  and 
refer  to  many  acts  of  assembly,  as  well  as  books  on  municipal 
and  international  law,  in  support  of  it,  we  still  think  that  they 
have  failed  to  sustain  it. 

Among  the  acts  of  assembly  referred  to,  none  appear  to  have 
any  bearing  upon  the  question  to  be  solved,  unless,  perhaps,  it 


43  SUPREME  COURT  [Dec.  Term, 

(Spring  Garden  e.  The  Northern  Liberties.) 

may  be  those  of  the  20th  of  February,  1768,  (1  Smith's  L.  278 ;) 
the  4th  of  April,  1796,  (3  Smith's  L.  274 ;)  the  28th  of  March, 
1803,  (4  Smith's  L.  35 ;)  the  1st  of  April  1811,  the  13th  section, 
(5  Smith's  L.  255  ;)  the  22d  of  March,  1813,  (6  Smith's  L.  37 ;) 
the  16th  of  March,  1819,  (7  Smith's  L.  177  ;)  and  the  6th  of 
March,  1820,  (7  Smith's  L.  260.)  I  do  not,  however,  consider 
it  necessary  to  notice  them  all ;  because  the  act  of  the  20th  of 
February,  1768,  which  the  complainants  make  the  foundation  of 
their  claim,  when  construed  according  to  the  natural  import  of  its 
terms,  and  what  would  seem  to  have  been  the  intention  of  the 
legislature,  does  not  bear  them  out.  They  have  endeavored  to 
show  that  by  this  aot  the  wharves  and  public  landing  places  in 
question,  were  declared  and  established  to  be  for  the  use  of  the 
inhabitants  of  what  was  therein  called  the  Northern  Liberties, 
and  afterwards,  the  township  of  the  Northern  Liberties,  in  the 
act  of  the  4th  of  April,  1796.  For  this  they  rely  chiefly  upon 
the  title  and  preamble  of  the  act.  The  title  is,  "  An  act  for 
raising,  by  way  of  lottery,  the  sum  of  five  thousand  two  hundred 
and  fifty  pounds,  for  the  purchasing  a  public  landing  in  the  North- 
ern Liberties,  and  paving  the  streets  of  the  city  of  Philadelphia  ;" 
and  the  preamble  thereof,  so  far  as  relied  on,  is  in  these  words, 
"  Whereas  it  has  been  represented  to  the  assembly  of  this  pro- 
vince, by  petition  from  sundry  inhabitants  of  the  city  of  Phila- 
delphia, and  Liberties  thereto  adjoining,  that  the  few  public  land- 
ings at  the  north  end  of  the  said  city,  and  in  the  said  Liberties 
thereof,  are  scarcely  sufficient  for  the  accommodation  of  its  present 
inhabitants  and  the  king's  barracks,  &c.,  to  provide  for  which, 
Be  it  enacted,"  &c.  Now,  if  the  enacting  part  of  the  act  had 
not,  in  express  terms,  declared  that  the  landing  therein  men- 
f*441  ti°ned  should  be  purchased  *for  a  different  use  from  that 
'  which,  it  is  contended  by  the  counsel  for  the  complain- 
ants, the  title  and  preamble  thereof  indicate,  there  might  have 
been  perhaps,  some  show  of  plausibility,  at  least,  in  drawing  the 
conclusion  which  they  have  done.  But  the  tenth  section  of  the 
act,  as  originally  published,  or  the  second  section  thereof,  as  pub- 
lished in  1  Smith's  L.  278,  279,  enacts  and  declares,  "  that  the 
commissioners  of  the  county  of  Philadelphia,  in  trust  for  the  pub- 
lic, by  and  with  the  consent  and  approbation  of  the  justices  of  the 
peace  of  the  said  county,  in  the  court  of  Quarter  Sessions,  shall, 
and  they  are  thereby  required  and  enjoined  to  buy  a  landing 
nearly  opposite  the  said  barracks,  and  receive  the  deed  thereof, 
in  trust  for  the  public  ;  and  further  to  build,  or  cause  to  be  built 
thereon,  a  good  wharf  and  a  pier,  for  the  use  of  the  public." 
And  by  the  next  succeeding  section,  it  is  further  made  the  duty 
of  the  said  commissioners,  with  the  approbation  of  three  Justices 
of  the  Peace  of  the  county,  to  take  care  of  the  landing,  by  letting 


1835.]  OF  PENNSYLVANIA.  44 

(Spring  Gardens.  The  Northern  Liberties.) 

it  out  for  the  purpose  of  repairing  and  improving  it  for  ever  there- 
after, as  the  said  commissioners  and  justices,  or  a  majority  of 
them,  for  the  time  being,  may  judge  most  for  the  public  good. 

Now,  although  it  may  be,  as  rather  seems  to  be  indicated  by 
the  preamble  of  the  act,  that  the  legislature  was  induced  or 
prompted  to  act  upon  this  subject  by  a  representation  made  in 
regard  to  it  by  some  of  the  then  inhabitants  of  the  city  of  Phila- 
delphia, and  liberties  thereto  adjoining,  stating  that  the  few  land- 
ings at  the  north  end  of  the  city  and  in  the  liberties  thereto,  were 
scarcely  sufficient  for  the  accommodation  of  its  inhabitants  at 
that  time  and  the  king's  barracks,  yet  it  is  clear  that  the  legis- 
lature did  not  view  the  matter  as  a  private  grievance,  but  as  one 
which  concerned  the  public  at  large;  and  therefore  expressly 
declared  and  directed,  that  the  purchase  of  the  landing  should 
not  only  be  in  trust  for  the  public,  but  that  the  deed  of  conveyance 
from  the  vendor  to  the  commissioners  for  it,  should  also  be  taken 
in  trust  for  the  public ;  and,  again,  that  the  commissioners,  after 
having  purchased  the  landing,  should  not  only  build  a  wharf  and 
pier  thereon,  for  the  use  of  the  public,  but  should  likewise  for  ever 
thereafter,  repair  and  improve  the  same  as  they  should  judge  best 
for  the  public  good.  Thus  we  see  that  the  public  is  brought  to 
view  and  designated  as  the  only  beneficiary  of  the  landing  as 
often  as  it  is  mentioned,  or  anything  said  in  relation  to  it,  almost 
throughout  the  act,  so  that  it  is  impossible  to  impute  this  repeti- 
tion and  uniformity  of  the  declaration  of  the  trust  in  favour  of 
the  public,  to  accident  or  inadvertence  on  the  part  of  the  legis- 
lature, or  indeed  to  any  thing  but  settled  design.  And  so  it  was 
taken  and  considered  by  subsequent  legislatures  in  their  action  on 
the  subject.  In  the  preamble  to  the  act  of  the  4th  of  April,  giving 
further  powers  to  the  commissioners  of  the  county  of  Philadelphia, 
in  conjunction  with  three  justices  of  the  peace  of  the  county,  over 
the  landings  and  wharves  in  dispute,  it  is  stated  "that  the  public 
*landings  on  the  river  Delaware,  in  the  township  of  the  r^jc-i 
Northern  Liberties,  may  be  rendered  more  serviceable  >• 
and  productive  by  giving  further  powers  to  the  commissioners  of 
the  county  of  Philadelphia,  in  whom  the  same  are  vested  by  laiv 
for  the  use*  of  the  public ."  And  so  throughout  this  act  they  are 
styled  public  landings  and  wharves;  and  are  placed  under  the 
control  and  management  of  the  commissioners  of  the  county  and 
three  justices  of  the  same,  without  regard  to  or  even  mention  of 
the  inhabitants  of  the  township  of  the  Northern  Liberties.  And 
the  3d  section  enacts,  "  that  it  shall  be  the  duty  of  the  said  com- 
missioners to  keep  the  said  landings,  wharves,  and  hay  scales,  in 
good  and  perfect  order  and  repair,  and  to  improve  the  same  from 
time  to  time  in  such  manner  as  will  most  conduce  to  the  public 
advantage;  and  whenever  the  funds  which  have  arisen,  or  shall 


45  SUPREME  COURT  [Dec.  Term, 

(Spring  Garden  t>.  The  Northern  Liberties.) 

arise  therefrom,  shall  over  and  above  the  said  repairs  and  im- 
provements, be  sufficient  to  purchase  other  landings,  or  wharves, 
it  shall  be  the  duty  of  the  said  commissioners,  with  the  consent 
and  approbation  of  three  justices  as  aforesaid,  to  make  such 
purchases  within  the  township  of  the  Northern  Liberties,  and  to 
improve  the  same  ;  and  the  landings  or  wharves  so  purchased  or 
improved,  shall  be  held  under  the  like  trusts  and  subject  to  the 
same  rules  and  regulations  as  the  before  mentioned  public  land- 
ings and  wharves."  The  circumstance  of  the  commissioners 
being  restrained  by  this  section  to  the  purchase  of  landings  and 
wharves  lying  within  the  township  of  the  Northern  Liberties  as 
it  then  stood,  has  been  laid  hold  of  also  by  the  counsel  of  the 
complainants,  to  show  that  the  legislature  intended  to  appropri- 
ate not  only  the  profits  arising  from  all  the  public  landings  and 
wharves  then  within  the  township  of  the  Northern  Liberties,  to 
the  use  of  the  inhabitants  thereof,  but  the  profits  likewise  of  all 
that  should  thereafter  be  purchased  with  the  funds  arising  from 
those  then  in  being.  But,  clearly,  there  is  no  ground  whatever 
for  this  construction,  because  the  township  is  not  mentioned  for 
the  purpose  of  showing  for  whose  use  the  purchases  should  be 
made ;  nor  are  there  any  terms  of  appropriation  connected  with 
it.  It  is  introduced  merely  to  designate  the  space  or  bounds 
within  which  the  commissioners  should  make  the  purchases  en- 
joined by  the  act ;  and  it  is  also  perfectly  obvious,  that  if  the 
township  had  been  introduced  as  the  object  for  whose  use  the 
purchase  of  the  landings  and  wharves  was  to  be  made,  the  next 
clause  declaring  that  they  "  should  be  held  under  the  like  trusts" 
would  be  worse  than  useless,  because  it  does  not  enforce  or  even 
comport  with  such  construction,  and  therefore  ought  not  to  have 
been  inserted ;  but  it  having  been  declared  in  the  preamble  of 
the  act  that  the  public  landings  on  the  Delaware,  then  within  the 
township  of  the  Northern  Liberties,  were  vested  by  law  in  the 
commissioners  of  the  county  for  the  use  of  the  public,  the  words 
"  like  trust,"  must  be  considered  as  having  a  direct  relation 
thereto,  which  renders  every  part  of  the  section  perfectly  perspi- 
f*461  cuous  as  wc^  ^  consistent  *with  itself.  Seeing,  then,  that 
'  these  landings  and  wharves  were  held  for  the  use  of  the 
public,  and  not  for  the  inhabitants  of  any  particular  township, 
or  county,  or  section  of  the  state,  it  cannot  be  questioned  but 
the  legislature  had  the  right,  as  often  as  they  saw  fit,  to  direct 
and  change  the  appropriation  of  the  funds  or  profits  arising 
therefrom  ;  and  this  was  done  in  1819,  as  to  the  public  landings 
and  wharves  at  the  end  of  Coates  street,  and  at  the  end  of  Cal- 
lowhill  street.  By  the  36th  section  of  the  act  of  the  16th  of 
March,  passed  in  that  year,  and  referred  to  above,  the  title  to 
these  wharves  and  landing  places  last  mentioned,  was  vested  in 


1835.]  OF  PENNSYLVANIA.  46 

(Spring  Garden  v.  The  Northern  Liberties.) 

the  board  of  commissioners  and  their  successors,  of  the  incorpo- 
rated district  of  the  Northern  Liberties,  "for  the  use  and  benefit 
of  the  inhabitants  of  the  said  district"  The  title  to  them  had 
previously  been  vested  in  the  commissioners  of  the  county  of 
Philadelphia,  for  the  use  of  the  public.  By  this  same  section  it  is 
also  declared  and  enacted  as  follows,  that  "  the  public  wharf  or 
landing  place,  commonly  called  the  Hay -scale  landing,  as  also 
the  public  wharf  or  landing  place,  on  the  south  side  of  and  ad- 
joining Callowhill  street,  (being  the  wharves  and  landing  places 
now  in  controversy,)  heretofore  held  in  trust  by  the  commis- 
sioners of  the  county  of  Philadelphia,  shall  be  and  are  hereby 
vested  in  the  board  of  commissioners  of  said  district,  (meaning 
the  incorporated  district  of  the  Northern  Liberties,)  who  shall 
keep  the  said  landings  and  wharves  in  good  and  perfect  order 
and  repair,  and  to  improve  the  same  from  time  to  time  in  such 
manner,  as  will  most  conduce  to  the  public  advantage ;  and  when- 
ever the  funds  which  shall  arise  therefrom,  shall,  over  and  above 
the  said  repair  and  improvements,  be  sufficient  to  purchase  other 
landings  or  wharves,  it  shall  be  the  duty  of  the  said  commis- 
sioners to  make  such  purchase  within  the  township  of  the  North- 
ern Liberties,  and  to  improve  the  same."  Thus,  although  the 
title  for  these  wharves  and  landing  places,  which  are  the  subject 
of  dispute  here,  is  taken  from  the  commissioners  of  the  county 
of  Philadelphia,  and  vested  in  the  board  of  commissioners  of  the 
incorporated  district  of  the  Northern  Liberties,  yet  we  see  that 
the  legislature  studiously  avoided  making  any  change  whatever 
in  the  use  of  them ;  and  the  commissioners  of  the  incorporated 
district  of  the  Northern  Liberties  were  thereby  expressly  re- 
quired to  keep  them  in  good  and  perfect  order  and  repair, 
and  to  improve  them  from  time  to  time  in  such  manner  as 
should  most  conduce  to  the  public  advantage  without  even 
the  slightest  allusion  to  or  mention  of  the  inhabitants  of  the 
township  of  the  Northern  Liberties ;  and  what  renders  the  de- 
sign of  the  legislature  at  that  time  to  continue  the  use  of  these 
latter  wharves  and  landing  places  to  the  use  of  the  public  gener- 
ally, the  more  striking  is,  that  in  the  preceding  part  of  the  sec- 
tion, they  have  declared  that  the  wharves  and  public  landings  at 
the  end  of  Coates  and  Callowhill  streets,  respectively,  should  be 
held  for  the  use  and  benefit  of  the  inhabitants  of  the  incorporated 
* district  of  the  Northern  Liberties,  without  any  direction  r*A>r-i 
given  to  improve  them,  as  should  most  conduce  to  the  *• 
public  advantage,  as  was  done  in  respect  to  the  wharves  and  land- 
ing places  in  question.  There,  was,  however,  a  change  made  by 
this  section  of  the  act  of  1819,  as  regarded  the  place,  within 
which  the  surplus  funds  arising  from  these  last  mentioned  wharves 
or  landing  places  should  be  invested  by  the  commissioners  in  the 


47  SUPREME  COURT  [Dec.  Term, 

(Spring  Garden  t>.  The  Northern  Liberties.) 

purchase  of  other  wharves  or  landing  places,  by  restraining  and 
confining  them  within  the  then  existing  bounds  of  the  township 
of  the  Northern  Liberties;  which  clearly  excluded  the  district 
of  Spring  Grrden  and  the  township  of  Penn,  but  included  the 
incorporated  district  of  the  Northern  Liberties  and  the  district 
of  Kensington ;  because  the  township  of  Penn,  which  embraces 
the  district  of  Spring  Garden,  having  been  erected  and  taken 
off  from  the  township  of  the  Northern  Liberties,  by  a  proceed- 
ing and  order  made  for  that  purpose  in  the  Court  of  Quarter 
Sessions,  of  the  County  of  Philadelphia  in  1808,  and  afterwards 
confirmed  and  established  by  the  13th  section  of  the  act  of 
Assembly  of  the  1st  of  April,  1811,  already  mentioned,  could 
therefore  form  no  part  of  the  latter  in  1819,  as  it  had  done  pre- 
viously. And  as  to  the  reason  for  introducing  the  township  of 
the  Northern  Liberties  in  this  part  of  the  36th  section  of  the  act 
of  1819,  it  is  perfectly  manifest,  that  it  was  done  for  no  other 
purpose,  than  to  designate  and  point  out  to  the  commissioners  of 
the  incorporated  district  of  the  Northern  Liberties,  the  place  or 
limits  within  which  they  should  thereafter  invest  the  surplus 
funds  arising  from  the  Hay -scale  landing,  and  that  south  of  and 
adjoining  to  Callowhill  street.  This  being  the  only  reason  for 
mentioning  the  township  of  the  Northern  Liberties,  it  would 
then  seem  to  follow  of  necessity,  that  its  limits  at  that  time  were 
made  the  measure  of  the  space,  within  which  the  investiture  of 
the  surplus  funds  was  intended  as  well  as  directed  to  be  made. 
And  here  it  may  be  further  observed,  that  the  legislature  have 
shown,  in  this  36th  section,  as  well  as  in  the  35th,  immediately 
preceding,  that  when  they  intended  to  appropriate  the  use  of 
any  wharves,  public  landings,  or  other  property  to  the  use  of  the 
inhabitants  of  any  particular  district,  township,  or  part  of  the 
state,  they  did  it  in  express  terms  and  language,  susceptible  of 
but  one  construction;  as  when  they  declare  that  the  public 
wharves  or  landing  places  at  the  end  of  Coates  and  Callowhill 
streets,  shall  be  vested  in  the  board  of  commissioners  and  their 
successors,  of  the  incorporated  district  of  the  Northern  Liberties, 
"for  the  use  and  benefit  of  the  inhabitants  of  the  said  district;" 
and  in  the  35th  section,  that  the  building  commonly  called  the 
town  house,  together  with  the  market  house  and  stalls  erected  in 
Second  street,  between  Coates  street  and  Poplar  lane,  shall  be 
vested  in  like  manner  in  the  same  commissioners,  "  for  the  use  of 
the  inhabitants  of  the  said  district." 

It  has  also  been  said,  in  the  course  of  their  argument,  by  the 
F*481  counsel  *°f  *ne  complainants,  that  the  money  with  which 
'   the  wharves  and  landing  places  in  controversy  were  ob- 
tained belonged  to  the  inhabitants  of  the  township  of  the  Northern 
Liberties,  according  to  its  limits  in  1768 ;  or  at  least  was  raised 


1835.]  OF  PENNSYLVANIA.  48 

(Lancaster*.  De  Normandie.) 

by  them,  and  that  they  thereby  acquired  a  resulting  trust  in 
these  Avharves  or  landing  places :  but  this  is  a  great  mistake,  for 
the  money  with  which  they  were  purchased,  so  far  as  anything 
has  been  shown  in  relation  to  this  point,  was  raised  by  a  lottery 
under  the  authority  given  by  the  act  of  1768,  and  therefore 
must  be  considered  public  money  according  to  the  principle  laid 
down  in  Elirenzeller  v.  The  Union  Canal  Company ',  1  Rawle, 
189.  It  was  levied  by  a  species  of  indirect  voluntary  assessment 
on  the  public,  to  which  the  inhabitants  of  the  township  of  the 
Northern  Liberties  may  or  may  not  have  contributed ;  and 
whether  they  did  or  not,  is  unknown,  and  wholly  immaterial. 
But,  besides,  it  was  expressly  declared  by  the  legislature,  that 
the  money  should  be  raised  for  the  purpose  of  being  invested  in 
a  purchase,  to  be  made  for  the  benefit  and  use  of  the  public,  and 
not  for  the  inhabitants  of  any  particular  township  or  district ; 
and  unless  we  disregard  the  plain  meaning  of  all  the  acts  of 
assembly  bearing  on  this  matter,  which  seem  to  be  couched  in 
terms  so  perfectly  free  from  all  ambiguity,  that  it  is  impossible  to 
misapprehend  their  true  import,  we  cannot  avoid  pronouncing  a 
judgment  against  the  complainants. 

We  are  therefore  decidedly  of  opinion,  that  the  public  wharf 
or  landing  place,  called  the  Hay-scale  landing,  and  the  public 
wharf  or  landing  place  on  the  south  of  and  adjoining  Callowhill 
street,  were  vested  by  the  act  of  1819,  in  the  board  of  commis- 
sioners of  the  incorporated  district  of  the  Northern  Liberties  in 
trust  for  the  use  of  the  public  generally  ;  and  that  the  complain- 
ants, either  collectively  or  separately,  have  no  claims  or  rights  to 
any  part  or  portion  of  the  value  or  income  thereof.  Whereupon 
it  is  ordered  and  adjudged  by  this  court,  that  the  petitions  of  the 
complainants  be  dismissed,  and  that  they  pay  all  the  costs  which 
have  accrued  in  this  case. 

Cited  by  Counsel,  5  Wharton,  334  ;  4  Harris,  86  ;  7  P.  F.  Smith,  216. 


[•PHILADELPHIA,  JANUARY  7, 1836.]  [*49] 

LANCASTER  against  DE  NORMANDIE. 

IN   ERROR. 

This  court  will  not  consider  any  paper  annexed  to  the  record,  as  furnishing 
the  opinion  of  the  court  below,  under  the  act  of  1806,  unless  it  also  ap- 
pear by  the  record,  that  the  paper  was  filed  at  the  request  of  one  of  the 
parties  or  of  his  counsel. 
VOL.  i. — 4 


49  SUPREME  COURT  [Dec.  Term, 

(Lancaster  c.  De  Normandie.) 

UPON  a  writ  of  error  to  the  Court  of  Common  Pleas  of  Bucks 
county,  it  appeared  by  the  record,  that  James  De  Normandie 
brought  an  action  of  covenant  in  that  court,  against  Morris  Lan- 
caster, in  which  he  declared  upon  certain  articles  of  agreement 
under  seal  ;  and  the  defendant  having  pleaded  "  covenants  per- 
formed," &c.,  the  parties  went  to  trial  upon  this  issue.  An- 
nexed to  the  record  was  a  paper  beginning  thus  : 

"  James  De  Normandie,  } 

v.  >  Covenant. 

Morris  Lancaster.  ) 

The  counsel  for  the  defendant,  requests  the  court  to  charge  the 


1.  That  the  action  is  brought  upon  articles  of  co-partnership, 
and  that  consequently  no  action  of  covenant  can  be  maintained, 
because  the  plaintiff  and  defendant  were  co-partners. 

The  present  action  may  be  sustained  notwithstanding  they  were 
co-partners." 

The  lines  in  italics  were  averred  to  be  the  answer  of  the  court. 

There  were  several  other  points,  with  the  alleged  answers  of 
the  court  ;  but  the  paper  was  not  authenticated  by  the  signature 
of  counsel  or  otherwise  ;  and  there  was  no  bill  of  exceptions  an- 
nexed to  the  record  ;  nor  did  it  appear  that  the  counsel  on  either 
side  had  requested  the  court  to  file  their  opinion  of  record. 

In  this  court  it  was  assigned  for  error,  that  the  court  below 
had  erred  in  their  charge  to  the  jury,  upon  the  points  stated. 

On  the  opening  of  the  case  this  day,  Mr.  Ingraham  for  the 
defendant  in  error,  suggested  that  there  was  nothing  on  the 
record  to  bring  up  the  points,  which  the  counsel  on  the  other  side 
had  assigned  for  error. 

Mr.  Ross  stated  that  the  record  was  made  up  in  conformity 
with  the  practice  which  had  long  prevailed  in  Bucks  county.  The 
paper  in  question  was  handed  by  the  court  to  the  prothonotary, 

F*ri01  a*"  en(^  *°*  '  ^ne  cnarge>  and  from  the  time  of  filing  of 
•*  the  paper,  it  was  supposed  to  be  liable  to  exception  under 
the  act  of  1806.  The  paper  is  sufficiently  authenticated  by  the 
signature  of  the  judge  to  the  return  made  on  the  writ  of  error. 
He  cited  Downing  v.  Baldwin,  (1  Serg.  &  Rawle,  298.) 

Mr.  Kittera,  on  the  same  side.  Since  the  act  of  1806,  the 
practice  has  perhaps  been  unsettled  ;  but  many  cases  brought 
into  this  court  have  been  considered  and  adjudicated,  upon  papers 
purporting,  like  the  present,  to  be  the  charge  of  the  court  below. 
Unless  there  is  a  bill  of  exceptions,  or  a  request  of  counsel  under 


1835.]  OF  PENNSYLVANIA.  50 

(Lancaster  v.  De  Normandie.) 

the  act  of  assembly,  a  judge  has  no  right  to  order  his  opinion  to 
be  filed '  of  record.  It  is  to  be  presumed,  therefore,  that  all  that 
was  necessary  for  the  purpose  was  done.  It  is  to  appear  upon 
the  record  that  the  counsel  requested  the  judge  to  file  his  opinion 
in  writing  ? 

[HUSTON,  J.     It  was  so  held  by  us  last  June,  at  Harrisburg.] 
The  case  of  Downing  v.  Baldwin,  certainly  does  not  require  it. 

The  opinion  of  the  court  was  delivered  by 

GIBSON,  C.  J.  It  is  singular  to  find  ourselves  formally  settling, 
at  so  late  a  day,  a  point  of  practice  under  the  act  of  1806,  which 
has  been  a  subject  of  daily  occurrence  and  repeated  decision. 
The  adjudications  on  it,  I  had  thought,  were  to  'be  found  in  the 
reports  ;  and  I  have  consequently  been  surprised  to  find  nothing 
there  but  the  decisions  in  Downing  v.  Baldwin,  and  Brown  v. 
Caldwell,  (10  Serg.  &  Rawle,  114.)  The  first  of  these  cases  was 
determined  shortly  before  I  came  to  the  bench  ;  since  which  time 
the  practice  has  been  variously  modified.  Downing  v.  Baldwin 
settled  no  more  than  that  the  law  of  the  case  may  be  reviewed, 
upon  the  opinion  of  the  judge  who  tried  the  cause,  as  a  substi- 
tute for  a  bill  of  exceptions  ;  but  certain  expressions  of  the  Chief 
Justice  might  be  thought  to  require  no  more  than  the  presence  of 
the  paper  on  the  file,  without  regard  to  the  circumstances  under 
Avhich  it  came  there.  "The  Act  of  Assembly,"  he  said,  "directs 
the  opinion  of  the  judge  to  be  filed  on  record  ;  it  becomes  then 
a  part  of  the  record,  and  being  so,  the  superior  court  must  of 
necessity  take  notice  of  it.  It  is  surely  as  much  a  part  of  the 
record  as  a  bill  of  exceptions ;  and  I  think  rather  more  so,  be- 
cause a  bill  of  exceptions  is  no  part  of  the  body  of  the  record, 
but  annexed  to  it ;  and  may  be  withdrawn  by  the  party  who  ten- 
dered it.  But  an  opinion  filed  by  positive  command  of  law,  is  of 
the  body  of  the  record,  and  must  so  remain."  The  consequence 
thus  indicated  is  inevitable,  where  the  opinion  has  been  legally 
filed  ;  but  that  was  not  the  difficulty.  It  appears  from  what  was 
said  by  Mr.  Justice  Yeates,  that  the  paper  had  been  filed  indis- 
putably at  the  instance  of  counsel ;  and  the  point  was  not  in  con- 
test. But  the  *chief  justice  seemed  to  think  that  an  r^r-j-i 
opinion  filed  was  a  substitute,  if  not  an  equivalent  for,  a  L  ° 
bill  of  exceptions  under  the  statute  of  Westm.  2  ;  which  requires 
the  exception  to  be  specificially  propounded,  before  it  is  sealed. 
This,  however,  was  denied  by  Mr.  Justice  Duncan,  in  delivering 
the  opinion  of  the  court  in  Brown  v.  Galdwell,  in  which  it  was 
certainly  determined  that  the  filing  by  request  need  not  appear  of 
record.  The  remarks  made  there,  would,  however,  seem  to  call 
rather  for  a  restricted  than  an  enlarged  construction.  The  vexa- 
tion and  inconvenience  of  the  proceeding  in  practice,  so  faithfully 


51  SUPREME  COURT  [Dec.  Term, 

(Case  of  John  Beaumont.) 

depicted,  subsequently  forced  the  court  in  various  instances,  to 
exact  a  rigid  compliance  with  the  requirements  of  the  act,  and  to 
settle  the  practice  differently  from  the  rule  laid  down  in  Brown  v. 
Caldwell.  What,  then,  are  those  requirements  ?  "  In  all  cases 
where  the  judge  or  judges,  &c.  shall  deliver  the  opinion  of  the 
court,  if  either  party  by  himself  or  counsel  require  it,  it  shall  be 
the  duty  of  the  said  judges  respectively,  to  reduce  the  opinion  so 
given,  with  the  reasons  therefor,  to  writing,  and  file  the  same  of 
record  in  the  cause."  Now,  as  the  act  authorizes  nothing  which 
it  does  not  enjoin  ;  where  there  has  been  no  request,  it  gives  no 
authority  to  put  the  matter  on  the  record  at  all.  It  never  was  in- 
tended to  permit  the  judge  to  set  before  the  parties  gratuitous 
incitements  to  appellate  litigation,  by  exposing  on  the  record,  errors 
which  had  escaped  their  notice  at  the  time.  Even  restrained  to 
its  legitimate  uses,  the  proceeding  has  been  found  sufficiently  pro- 
lific of  vexatious  and  unprofitable  contest.  By  the  express  terms 
of  the  act,  the  judge  has  authority  to  file  his  opinion  of  record, 
but  at  the  request  of  a  party  desiring  to  have  advantage  from  it ; 
and  when  he  does  it  of  his  own  head,  he  makes  nothing  matter  of 
record,  which  was  not  so  before.  How,  then,  is  it  to  appear  that 
he  acted  at  the  instance  of  the  party  ?  Undoubtedly,  as  we  have 
often  decided  in  conformity  to  the  words  of  the  act— particularly 
in  an  exceedingly  hard  case  during  the  last  term  at  Harrisburg — 
by  his  certificate  filed  with  his  opinion,  or  at  least  a  memorandum 
at  the  foot  of  it ;  for  as  a  court  of  error  can  inspect  nothing  but 
the  record,  it  cannot  receive  information  of  the  fact  elsewhere. 
It  is  the  business  of  counsel,  therefore,  to  see  that  the  proper 
evidence  be  sent  up ;  for  where  the  fault  cannot  be  repaired  by  a 
supplementary  certificate,  he  will  else  lose  the  benefit  of  his  ex- 
ception. For  want  of  this,  in  the  present  instance,  we  are  pre- 
cluded from  considering  the  assignment  of  error. 

Judgment  affirmed. 
Cited  by  Counsel,  5  Wharton,  180. 
Cited  by  the  Court,  5  Watts,  71  ;  1  Harris,  386. 


[*52]  ['PHILADELPHIA,  JANUARY  11,  1836.] 

In  the  matter  of  JOHN  BEAUMONT. 

CERTIORARI. 

A  return  of  an  inquisition,  held  by  virtue  of  a  commission  in  the  nature 
of  a  writ  df  lunatico  inquirendo,  that  the  party,  "by  reason  of  old  age 
and  long  continued  sickness,  has  Income  so  far  deprived  of  reason  and 
understanding,  as  to  be  wholly  unfit  to  manage  his  estate,"  is  not  a  suffi- 
cient finding  that  the  party  is  "7km  compo»  mentis ;"  within  the  consti- 
tution and  laws  of  this  Commonwealth. 


1835.]  OF  PENNSYLVANIA.  52 

(Case  of  John  Beaumont.) 

THIS  case  came  before  the  court  upon  a  certiorari  to  the  Court 
of  Common  Pleas  of  Bucks  County. 

Upon  the  petition  of  John  T.  Neely,  setting  forth,  that  John 
Beaumont,  of  the  County  of  Bucks,  had,  "  by  reason  of  old  age 
and  long  continued  sickness,  become  so  far  deprived  of  reason 
and  understanding,  as  to  be  wholly  unfit  and  unable  to  manage 
his  estate,"  and  was  wasting  and  destroying  the  same,  the  Court 
of  Common  Pleas  of  that  County  issued  a  commission  in  nature 
of  a  writ  de  lunatico  inquirendo  ;  upon  which  the  commissioners 
and  jury  returned  that  "the  said  John  Beaumont,  at  the  time 
of  taking  this  inquisition,  by  reason  of  old  age  and  long  con- 
tinued sickness,  has  become  so  far  deprived  of  reason  and  under- 
standing, as  to  be  wholly  unfit  to  manage  his  estate,  and  hath  been 
so  for  the  last  eighteen  months  and  upwards."  The  jury  also 
found  that  he  was  of  the  age  of  75  years.  On  the  return  of  the 
inquest,  several  exceptions  were  filed  on  the  part  of  John  Beau- 
mont. The  material  exception  was,  that  the  finding  was  defec- 
tive and  insufficient  to  give  the  court  jurisdiction.  The  Court  of 
Common  Pleas  being  of  this  opinion,  after  argument,  quashed 
the  inquisition ;  and  the  proceedings  being  removed  to  this  Court, 
the  decision  of  the  Court  below  upon  this  point,  was  assigned  for 
error. 

Mr.  Ross,  for  the  plaintiff  in  error,  argued  that  under  the  sixth 
section  of  the  fifth  article  of  the  constitution  of  this  Common- 
wealth, which  declares  that  "  the  Supreme  Court,  and  the  several 
Courts  of  Common  Pleas,  shall,  besides  the  powers  heretofore 
usually  exercised  by  them,  have  the  power  of  a  Court  of  Chan- 
cery, so  far  as  relates  to  the  care  of  the  persons  and  estates  of 
those  who' are  non  compotes  mentis"  the  finding  in  this  case  was 
sufficient.  He  cited  1  Black.  Com.  304 ;  Co.  Litt.  246,  (b.)  s. 
405;  Exparte  Barnsley,  (3  Atkyns,  371;)  Shelford  on  Lunacy, 
87, 88,  89 ;  Ridgway  v.  Darwin,  (8  Vesey,  65  ;)  Exparte  Cran- 
mer,  (12  Vesey,  445 ;)  1  Woodeson's  Lectures  411 ;  8  Mass. 
Rep.  129 ;  4  Dessaussure,  546 ;  2  Johns.  Chan.  Rep.  232. 

*Mr.  Randall,  contra,  stated  that  in  the  Common  r^ro-i 
Pleas,  for  the  City  and  County  of  Philadelphia,  where  "-  ' 
commissions  in  the  nature  of  the  writ  de  lunatico  inquirendo,  had 
been  numerous,  he  had  ascertained  upon  inquiry,  that  no  return 
had  been  confirmed,  unless  the  party  has  been  found  to  be  "  non 
compos  mentis"  or  "  of  unsound  mind."  He  argued  that  these 
words  were  essential  to  authorize  the  interference  of  the  court ; 
and  at  all  events,  that  the  return  in  the  present  case,  was  insuf- 
ficient. He  cited  Schoales  &  Leroy's  Rep.  439;  Shelford  on 
Lunacy,  22,  86,  108,  797 ;  1  Collinson,  148 ;  12  Petersdorff's 


53  SUPREME  COURT  [Dec.  Term, 

(Case  of  John  Beaumont.) 

Abr.  394;  1  Ruffin's  Rep.  11;  5  Halsted,  217.  To  show  the 
sense  in  which  the  words,  "won  compos  mentis"  were  used  by  the 
legislature,  the  acts  of  14th  April,  1794,  (3  Sm.  L.  129,)  and  7th 
Feb.  1814,  (6  Sm.  L.  104,)  were  cited.  Mr.  Randall  also  re- 
ferred to  the  acts  of  25th  Feb.  1819,  (7  Sm.  L.  155,)  and  2d 
April,  1822,  (7  Sm.  L.  604,)  relating  to  "Habitual  Drunkards," 
in  support  of  his  argujnent,  that  mere  imbecility  was  not  within 
the  ordinary  jurisdiction  of  the  courts. 

KENNEDY,  J.,  delivered  the  opinion  of  the  court. 

This  case  presents  but  one  question,  and  that  is,  whether  the 
finding  of  the  inquest  shows  that  John  Beaumont  was  non  compos 
mentis  within  the  meaning  of  this  phrase  or  term,  as  used  in  the 
sixth  section  of  the  fifth  article  of  the  constitution,  whereby  the 
Supreme  Court,  and  the  several  Courts  of  Common  Pleas  of  this 
State,  among  other  things,  are  "invested  with  the  power  of  a 
Court  of  Chancery,  so  far  as  relates  to  the  care  of  the  persons 
and  estates  of  those  who  are  non  compotes  mentis."  On  the  part 
of  the  relator  it  has  been  argued,  that  according  to  the  general 
sense  and  understanding  of  this  term,  as  received  and  acted  on  in 
Chancery,  the  state  and  condition  of  Beaumont,  as  represented 
by  the  inquest,  falls  clearly  within  it;  and  in  support  of  this  Sir 
Wm.  Blackstone  has  been  vouched ;  where,  in  the  second  volume 
of  his  Commentaries,  304,  he  says,  "  a  lunatic,  or  non  compos 
mentis  is  one  who  hath  had  understanding,  but  by  disease,  grief, 
or  other  accident,  hath  lost  the  use  of  his  reason.  A  lunatic, 
indeed,  is  properly  one  that  hath  lucid  intervals:  sometimes 
enjoying  his  senses,  and  sometimes  not;  and  that  frequently 
depending  on  the  change  of  the  mo'on.  But  under  the  general 
name  of  non  compos  mentis,  (which  Sir  Edward  Coke  says  is  the 
most  legal  name,)  are  comprised  not  only  lunatics,  but  persons 
under  frenzies,  or  who  lose  their  intellects  by  disease ;  those  that 
groio  deaf,  dumb,  and  blind,  not  being  born  so;  or  such,  in  short, 
as  are  judyed  by  the  Court  of  Chancery  incapable  of  conducting 
their  own  affairs."  It  is  this  latter  sentence  that  is  relied  on; 
for  which,  it  may  be  observed,  the  learned  commentator  cites  no 
authority.  Mr.  Fonblanque,  in  his  Treatise  on  Equity,  vol.  I. 
page  63,  note  p.,  has  transcribed  the  above  passage,  and 
observes  that  he  was  induced  to  do  so  "in  order  to  obviate 
f-^r  j-i  *the  error  into  which  the  learned  commentator  seems  to 
'  have  fallen,  in  the  concluding  sentence."  He  then  pro- 
ceeds by  saying,  that  "  the  rules  of  judging  upon  the  point  of 
insanity  being  the  same  at  law  and  in  equity,  ( Osmond  v.  Fitz- 
roy,  3  P.  Williams,  130 ;  Bennett  v.  Vade,  2  Atk.  327,)  the 
Courts  of  Chancery  cannot  assume  any  kind  of  discretion  upon 
the  subject ;  and,  therefore,  in  Ex  parte  Barnsley,  3  Atk.  168, 


1835.]  OF  PENNSYLVANIA.  54 

(Case  of  John  Beaumont.) 

the  return  of  the  inquest,  stating  '  that  W.  B.  was  at  the  time 
of  taking  the  inquisition,  from  the  weakness  of  his  mind,  inca- 
pable of  governing  himself,  and  his  lands  and  tenements/  was 
held  illegal  and  void ;  and  many  adjudged  cases  being  cited  to  the 
same  effect,  Lord  Hardwicke  congratulated  himself  that,  except 
in  two  or  three  instances,  the  return  had  been  that  he  is  lunaticus, 
or  non  compos  mentis,  or  insance  mentis,  or,  since  the  proceedings 
have  been  in  English,  of  unsound  mind ;  which  amounts  to  the 
same  thing."  And  afterwards,  in  1751,  Lord  Hardwicke,  in 
Lord  Donegal's  case,  2  Yes.  407,  according  to  the  same  prin- 
ciple, refused  a  commission  of  lunacy ;  though  there  appeared  to 
be  an  extreme  degree  of  weakness  of  understanding  and  imbe- 
cility of  mind  on  the  part  of  Lord  Donegal. 

In  order,  however,  to  come  to  a  correct  conclusion  on  the 
present  question,  it  is  proper  to  inquire  and  to  ascertain  first, 
whether  the  term  non  compos  mentis,  had  not  acquired  a  legal 
and  technical  meaning  at,  and  anterior  to  the  formation  of  the 
constitution  of  this  state,  in  1791 ;  because,  if  it  had,  I  take  it, 
that  we  are  bound  to  interpret  it  accordingly ;  and  this,  or  any 
other  Court  in  the  state,  has  no  power  or  authority  to  change  it, 
so  as  to  include  any  other  description  of  persons  in  a  proceeding 
of  lunacy,  than  such  as  shall  appear  to  come  fairly  within  the 
meaning  so  affixed  to  it.  Seeing  we  have  derived  the  most  of  our 
legal  terms  and  phrases,  as  well  as  principles  from  the  English 
Common  Law,  a  reference  to  it,  and  the  decisions  of  the  Courts 
of  England  in  relation  thereto,  may  not  be  amiss,  in  order  to 
obtain  some  light  upon  the  subject.  Littleton,  section  405, 
speaks  of  a  man  of  non  sane  memory,  as  one  who  is  non  compos 
mentis ;  upon  which  Lord  Coke,  in  his  Commentary,  (Co.  Lit. 
246,  b,  246,  a,)  says,  "  here  Littleton  explaineth  a  man  of  no 
sound  memory  to  be  non  compos  mentis.  Many  times  (as  here  it 
appeareth)  the  Latin  word  explaineth  the  true  sense,  and  calleth 
him  not,  amens,  demens,furiosus,  lunaticus,fatuus,  stultus,  or 
the  like  ;  for  non  compos  mentis  is  the  most  sure  and  legal" 
Now,  it  is  obvious  that  Lord  Coke  considered  non  compos  mentis 
not  only  the  legal,  but  the  sure  term,  and  not,  amens,  demens,  &c. 
He  also  divides  non  compos  mentis  into  four  sorts — 1st.  An  idiot, 
who,  from  his  nativity,  by  a  perpetual  infirmity,  is  non  compos 
mentis;  2d.  He  that  by  sickness,  grief,  or  other  accident,  wholly 
loseth  his  memory  and  understanding;  3d.  A  lunatic,  who  hath 
sometimes  his  understanding  and  sometimes  not,  aliquando  gaudet 
lucidis  intervallis ;  and  therefore  is  called  non  compos  mentis, 
so  long  as  he  hath  not  understanding.  *]»astly,  he  that,  by  r*cc-i 
his  own  vicious  act,  for  a  time  depriveth  himself  of  his  ^ 
memory  and  understanding,  as  he  that  is  drunken.  And  this 
last  kind  of  non  compos  mentis  shall  give  no  privilege  or  benefit 


55  SUPREME  COURT  [Dec.  Term, 

(Case  of  John  Beaumont.) 

to  him  or  his  heirs."  And  in  Beverly's  case,  4  Co.  124,  a  non 
compos  mentis  of  the  second  sort,  is  described  to  be  "he  who  was 
of  good  and  sound  memory,  and  by  the  visitation  of  God  lost  it." 
Now,  it  must  be  admitted,  that  there  are  various  degrees  of 
memory  and  understanding,  from  that  of  the  most  powerful  and 
vigorous,  down  to  that  of  the  most  abject  and  imbecile,  yet  it  is 
perfectly  manifest  that  Littleton  and  Lord  Coke  did  not  consider 
a  wow  compos  mentis  as  embraced  within  any  of  the  several 
grades  of  mind,  but  as  one  wholly  destitute  of  it,  at  least  occa- 
sionally, that  is,  of  both  memory  and  understanding.  And  such, 
I  apprehend,  was  the  prevailing  sentiment  down  to  the  time  of 
Lord  Hardwicke,  who,  in  1745,  decided  the  case  of  Barnsley, 
already  mentioned,  in  conformity  to  it.  In  3  Atk.  173,  he  says, 
"being  non  compos  mentis,  of  unsound  mind,  are  certain  terms 
in  law,  and  import  a  total  deprivation  of  sense  ;  now  weakness 
does  not  carry  this  idea  along  with  it ;  but  courts  of  law  under- 
stand what  is  meant  by  non  compos,  or  insane,  as  they  are  words 
of  a  determinate  signification."  Then  he  gives  Lord  Coke  for 
authority,  "that  they  are  persons  of  non  sane  memory;"  and 
adds,  "wow  compos  mentis  is  used  in  the  statute  of  limitations,  so 
that  it  is  legitimated  now,  under  several  acts  of  parliament." 
Hence  it  would  appear,  that  non  compos  mentis  had  become  a 
technical  term  in  the  English  law,  of  fixed  and  determinate 
import,  denoting  a  person  entirely  destitute  or  bereft  of  his 
memory  and  understanding.  And  as  conveying  this  idea,  it  was 
clearly  introduced  into  acts  of  legislation  in  Pennsylvania,  while 
an  English  province;  for  instance,  in  the  "act  for  the  limitation 
of  actions,"  passed  the  27th  of  March,  1713.  And  since  we 
became  an  independent  state,  it  has  been  uniformly  used  by  our 
legislature  in  all  their  acts,  wherever  it  has  been  employed,  in  the 
same  sense.  This  being  the  case,  it  cannot  be  doubted  for  a 
moment,  but  the  words,  non  compotes  mentis,  were  used  by  the 
framers  of  the  constitution,  for  the  purpose  of  giving  the  courts 
power  to  appoint  committees,  to  take  care  of  the  persons  and 
estates  of  such  persons  only,  as  should  be  found  to  be  wholly  void 
of  memory  and  understanding,  or  in  other  words,  of  unsound 
mind,  and  not  of  such,  as  had,  according  to  the  finding  of  the 
inquest  in  this  case  "by  reason  of  old  age  and  long  continued 
sickness,  become  so  far  deprived  of  reason  and  understanding,  as 
to  be  wholly  unfit  and  unable  to  manage  his  estate."  The  reason- 
able inference  to  be  drawn  from  the  finding  of  the  jury  here  is, 
that  Beaumont  was  not  wholly  deprived  of  his  reason  and  under- 
standing ;  that,  on  the  contrary,  he  still  retained  a  portion  of  it, 
but  not  sufficient,  in  their  estimation,  for  the  management  of  his 
estate,  though  enough,  it  would  seem  for  the  care  of  his  person  ; 


1835.]  OF  PENNSYLVANIA.  56 

(Case  of  John  Beaumont. ) 

because  *they  have  said  nothing  of  his  incompetency  for 
that  purpose ;  and  of  course,  the  court  would  not  have 
been  warranted  in  appointing  a  committee  to  care  of  his  person, 
as  he  was  not  found  to  be  of  unsound  mind,  or  incapable  himself 
of  taking  care  of  it.  The  finding  of  the  jury  is  somewhat  similar 
to  that  in  Cr (miner's  case,  12  Ves.  445,  where  they  found  that 
"he  was  so  far  debilitated  in  his  mind,  as  to  be  incapable  of  the 
general  management  of  his  affairs  ;"  and  Lord  Chancellor  Erskine 
said,  in  observing  upon  it,  "  how  can  I  tell  what  is  so  far  debilitated 
in  his  mind,  as  not  to  be  equal  to  the  general  management  of  his 
affairs."  He  considered  the  finding  too  ambiguous,  and  therefore 
quashed  the  inquisition;  though  he  was  of  opinion,  that  the  evi- 
dence would  have  justified  the  jury  in  finding  that  the  party  was 
of  unsound  mind  ;  "  so  that  he  was  not  sufficient  for  the  govern- 
ment of  himself,  his  manors,  &c.,"-all  of  which  was  found  by  a 
subsequent  jury  and  held  good.  It  is  true,  however,  that  the 
Court  of  Chancery  in  England,  has  of  late  gone  beyond  what 
Lord  Hardwicke,  sitting  as  Chancellor,  thought  was  his  proper 
limits  ;  and  has  applied  commissions,  not  de  lunatico  enquirendo, 
however,  which  are  uniformly  applied  to  the  case  of  all  such  as 
are  considered  non  compos  mentis  but  commissions  in  the  nature 
of  those  of  lunacy,  to  cases  where  there  in  such  an  imbecility  of 
mind  as  renders  a  person  incompetent  to  the  management  of  his 
affairs,  or  liable  to  be  imposed  on.  See  1  Wooddes.  411 ;  Ridg- 
way  v.  Darwin,  8  Ves.  65,  66  ;  Exparte  Cranmer,  12  Ves.  447, 
and  Mr.  Belt's  note  to  Lord  Donegal's  case,  2  Ves.  407,  408. 
But  this  latter  description  of  persons  must  not  be  confounded 
with  those  who  are  non  compotes  mentis ;  whose  voluntary  deeds 
will  be  set  aside  at  once  upon  its  being  shown  that  they  were  such 
at  the  time  of  executing  them ;  but  in  regard  to  the  like  deeds  of 
the  former,  it  is  only  when  connected  with  circumstances  tending 
to  show  that  they  were  obtained  by  fraud,  that  they  will  be  set 
aside,  Osmond  v.  Fitzroy,  3  P.  Williams,  130,  131 ;  G-riffin  v. 
De  Veulle,  3  Wooddes.  App.  16.  So  in  Wiglitmanv.  Wightman, 
4  Johns.  Ch.  Rep.  343,  Chancellor  Kent  said,  that  idiots  and 
lunatics  are  incapable  of  entering  into  the  matrimonial  contract ; 
and  that  such  marriages  are  ipso  facto  void,  is  a  proposition  too 
plain  to  be  questioned.  In  short,  the  distinction  between  those 
who  are  styled  non  compotes  mentis  in  law,  and  those  who  labor 
under  extreme  imbecility  of  mind  is  very  clearly  maintained 
throughout  every  part  of  it :  and  in  order  to  prevent  confusion 
it  may  be  important,  perhaps,  that  this  distinction  should  con- 
tinue to  be  observed.  And  until  the  legislature  shall  authorize 
the  courts  of  this  state  to  entertain  a  proceeding,  with  a  view  to 
deprive  the  latter  description  of  persons  of  all  control  and  power 
over  their  estates,  they  cannot  take  cognizance  of  it.  The  exer- 


56  SUPREME  COURT  [Dec.  Term, 

(Klinker' s  Appeal.) 

cise  of  such  authority  over  the  rights  of  the  citizens,  is  of  too 
.-^e-,  much  moment  to  be  claimed  by  courts,  unless  *  given 
*-  -I  expressly  by  the  constitution  or  some  act  of  the  legisla- 
ture, which  has  not  been  done  as  yet.  The  judgment  is  affirmed. 

SERGEANT,  J.  having  been  of  counsel  with  one  of  the  parties, 
did  not  sit  in  the  case. 

Judgment  affirmed. 

Modified,  6  Watts  &  Sergeant,  461  ;  9  P.  F.  Smith,  331. 


[PHILADELPHIA,  JANUARY  12,  1836.] 
KLINKER'S  APPEAL. 

A.  executed  a  sealed  note,  l>y  which  he  promised  to  pay  to  B.  a  certain 
sum,  when  C.  (an  infant)  should  arrive  at  the  age  of  21  years,  with  law- 
ful interest  to  be  paid  annually,  "in  trust  for  the  use  of  the  said  C"." 
Held,  that  the  lien  of  this  debt  was  gone,  upon  the  expiration  of  seven 
years  from  the  death  of  A. ;  a  copy  of  the  instrument  not  having  been 
filed,  according  to  the  provisions  of  the  act  of  1797. 

Tins  was  an  appeal  from  a  decree  of  the  Court  of  Common 
Pleas  of  Northampton  County,  distributing  the  proceeds  of  sale 
of  certain  real  estate,  sold  by  virtue  of  a  writ  of  venditioni  ex- 
jwnas,  at  the  suit  of  Abraham  Jacoby,  administrator  of  the  goods, 
&c.,  of  Elias  Klinker,  deceased,  against  Jacob  Klinker. 

The  material  facts  were  as  follows : 

On  the  18th  of  March,  1811,  John  Klinker  executed  a  sealed 
note,  or  single  bill,  bearing  that  date,  whereby  he  promised  to 
pay  to  John  William*,  or  order,  the  sum  of  of  111.  2».  Qd.,  law- 
ful money  of  the  United  States,  "  when  Ja>-ob  Klinker,  the  son 
of  Catharine  I  larpst,  tthall  arrive  at  21  years  of  age,  with  lawful 
interest  to  be  paid  annually,  in  trust  for  the  use  of  the  said 
Jacob  K  linker,  son  of  the  said  Catharine  Harpst  aforesaid,  for 
value  received." 

John  Klinker,  the  maker  of  the  said  instrument,  died  between 
the  months  of  January  and  April,  1812,  having,  on  the  3d  of 
January,  1812,  made  his  last  will  and  testament,  of  Avhich  he  ap- 
pointed his  sons,  Jnhn  and  Jawb,  the  executors.  The  executors 
filed  an  inventory  of  the  personal  estate  of  the  testator  on  the 
oth  of  May,  1812  ;  but  no  account  was  settled  by  them. 

Jacob  Klinker,  the  son  of  Catharine  Harpst,  and*  the  person 
for  whose  benefit  the  said  bill  or  note  was  executed,  attained  the 
.age  of  21  years,  on  the  21st  of  June,  1830.  On  the  3d  of  Sep- 


1835.]  OF  PENNSYLVANIA.  57 

(Klinker' s  Appeal.) 

tember,  1830,  he  entered  in  the  office  of  the  prothonotary  of  the 
Court  of  Common  Pleas  of  Northampton  County,  his  claim 
against  the  estate  of  John  Klinker,  deceased,  as  follows : 

"  Jacob  Klinker,  otherwise  called  Jacob  Harpst,  hereby  files  in 
the  office  of  the  prothonotary  of  Northampton  County,  the  fol- 
lowing *copy  of  a  bill  single,  due  by  John  Klinker,  late  r*co-i 
of  Hamilton  township,  in  the  County  of  Northampton,  *• 
deceased,  to  him  the  said  Jacob,  in  pursuance  of  the  act  of  assem- 
bly, passed  the  4th  day  of  April,  1797,  entitled  '  an  act  supple- 
mentary to  the  act  directing  the  descent  of  intestate  real  estates, 
this  is  to  say:" 

[Here  follows  a  copy  of  the  bill.] 

"  The  interest  on  this  bill  single,  has  been  paid  up  to  the  29th 
of  September,  1821,  and  the  said  Jacob  Klinker,  otherwise  called 
Jacop  Harpst,  avers  that  he  only  attained  the  age  of  21  years,  on 
the  21st  day  of  June  last  past,  and  that  at  the  time  of  the  decease 
of  the  said  John  Klinker,  he  was  a  minor  under  the  age  of  21 
years." 

The  real  estate  of  John  Klinker,  the  drawer  of  the  bill,  was 
devised  to  his  children  ;  who  made  partition  thereof;  and  a  judg- 
ment having  been  obtained  against  one  of  them,  his  part  or  share 
was  sold  by  the  sheriff;  and  the  proceeds  having  been  brought 
into  court,  Jacob  Klinker,  or  Harpst,  claimed  to  be  paid  the 
amount  of  the  said  bill,  on  the  ground  that  it  was  a  lien  on  the 
estate  of  the  drawer,  and  for  that  reason  entitled  to  a  preference 
over  the  debts  of  the  son. 

The  court  below  decided  that  the  lien  of  this  debt  was  gone 
under  the  act  of  1797  ;  and  thereupon  Jacob  Klinker  appealed 
to  this  court. 

Porter,  for  the  appellant.  The  act  of  1797,  which  limits  the 
lien  of  debts  of  deceased  persons  to  seven  years  after  the  death 
of  the  debtor,  unless  an  action  be  commenced  within  the  said 
period,  or  a  copy  of  any  bond,  &c.,  not  payable  within  the  said 
period,  be  filed  Avithin  the  said  period  in  the  prothonotary's  office, 
contains  a  proviso  that  "  a  debt  due  and  owing  to  a  person  who 
at  the  time  of  the  decease  of  such  debtor,  is  a  feme  covert,  in  his 
or  her  minority,  &c.  shall  remain  a  lien  on  the  said  lands  and 
tenements,  (notwithstanding  the  said  term  be  expired,)  until  four 
years  after  disco verture,  or  such  person  shall  have  arrived  at  the 
age  of  twenty-one  years."  The  question  is,  whether  the  appellant 
is  not  entitled  to  the  benefit  of  this  saving  clause.  The  pervading 
and  paramount  principle  of  the  law  of  Pennsylvania  is,  that  lands 
are  liable  for  the  payment  of  the  debts  of  the  owner,  during  his 
life  and  after  his  death.  The  act  of  1797  was  in  restraint  of  the 
general  rule,  and  the  proviso  throws  it  open  as  respects  the 


58  SUPREME  COURT  [Dee.  Term, 

(Klinker' s  Appeal.) 

classes  of  persons  there  mentioned.  It  is  to  be  remarked  that 
the  preamble  of  the  act  speaks  of  "  bona  fide  purchasers"  Here, 
there  are  no  purchasers  to  be  injured.  The  contest  is  between 
the  creditors  of  the  heir  and  the  creditors  of  the  ancestor.  It  is 
said  that  there  is  a  trustee  appointed  by  the  instrument,  and 
that  he  might  have  sued  during  the  minority  of  the  appel- 
lant. But  this  is  more  like  the  case  of  a  guardian  ;  and  it  has 
j-^rq-i  *never  been  held  that  the  appointment  of  a  guardian  for 
J  an  infant  caused  the  statute  to  run  against  him.  The 
same  remark  may  be  made  of  the  committee  of  a  person  non  com- 
pos mentis.  So  of  the  case  of  married  women.  Here  the  debt 
was  "  due  and  owing,"  in  the  words  of  the  acts  of  assembly,  to 
the  child,  not  to  the  trustee.  Mr.  Porter  cited  Graff  v.  Smith, 
(1  Ball.  481 ;)  Morris'  Lessee  v.  Smith,  (1  Yeates/238;)  Han- 
num  v.  Spear,  (Id.  458;)  Jackson  v.  Sears,  (10  Johns.  Rep.  435;) 
Rogers  v.  Cruger,  (7  Johns.  Rep.  557  ;)  Shepherd  v.  MlEvers, 
(4  Johns.  Ch.  Rep.  136 ;)  Carrick  v.  Errington,  (9  Mod.  33  ;) 
Moses  v.  Margatrayd,  (1  Johns.  Ch.  Rep.  119  ;)  Murray  v.  Bal- 
Im,  (Id.  566  ;)  Anderson  v.  Van  Allen,  (12  Johns.  Rep.  343  ;) 
7  Johns.  Ch.  Rep.  52 ;  Schoales  &  Lefroy,  862  ;  15  Ves.  350. 

Hepburn,  contra.  This  is  a  very  plain  case,  if  the  decisions 
under  analogous  statutes  are  to  be  regarded.  Here,  there  was 
an  express  trust,  and  a  trustee  named  for  the  very  purpose  of 
collecting  and  receiving  the  money.  No  one  but  John  Williams 
could  have  sued  for  this  money.  It  is  well  settled  in  England, 
that  the  statute  of  limitations  runs  against  an  infant,  if  there  be 
a  trustee  for  him.  Blanchard  on  Limitations,  p.  82 ;  Wilkinson 
on  Limitations,  p.  39  ;  Wych  v.  East  India  Company,  3  Peere 
Williams,  309. 

The  opinion  of  the  court  was  delivered  by 

HUSTON,  J. — John  Klinker,  in  his  lifetime,  .was  seized  of  the 
land,  from  the  sale  of  which  the  money  in  dispute  arose.  While 
so  seized,  he  made  the  following  single  bill,  which,  it  would  seem, 
was  intended  to  have  been  signed  also  by  his  son  Jacob  : 

"  We  promise  to  pay,  or  cause  to  be  paid,  unto  John  Williams, 
or  order,  the  just  and  full  sum  of  seventeen  pounds  two  shillings 
and  six  pence,  lawful  money  of  the  United  States,  and  that  when 
Jacob  Klinker,  the  son  of  Catherine  Harpst,  shall  arrive  at  21 
years  of  age,  with  lawful  interest  to  be  paid  annually,  in  trust 
for  the  use  of  the  said  Jacob  Klinker,  son  .of  the  said  Catherine 
Harpst  aforesaid,  for  value  received.  Witness  our  hands  and 
seals  the  13th  day  of  March,  1811. 

Witness,  [SEAL.] 

JOHN  KLINKER,  JR."  JOHN  KLINKER.     [SEAL.] 


1835.]  OF  PENNSYLVANIA.  59 

(Klinker's  Appeal.) 

John  Klinker  made  his  will  on  the  5th  of  January,  1812, 
which  was  proved  on  the  8th  of  April,  1812,  and  appointed  his 
sons  John  and  Jacob  executors.  The  executors  filed  an  inventory 
on  the  2d  of  May,  1812,  hut  have  never  settled  any  account.  It 
also  appears  that  he  devised  certain  lands  to  be  sold.  He  devised 
a  certain  *tract  of  land  to  be  divided  between  his  sons  r+fin-i 
John  and  Jacob  and  Elias  ;  and  it  was  divided  in  such  L 
manner,  that  each  got  one  hundred  and  thirty-two  acres  and  some 
perches.  The  partition  was  perfected  by  conveyances,  dated  on 
the  4th  of  November,  1815.  If  necessary,  I  would  consider  each 
a  purchaser  from  this  date.  On  the  9th  of  November,  1815, 
Elias  conveyed  to  Jacob  his  part,  and  on  the  same  day  took  a 
mortgage  from  Jacob  to  secure  1200?.,  the  balance  unpaid  of  the 
purchase  money,  and  a  bond  for  the  same  money ;  and  clearly 
Jacob  of  this  part  was  a  purchaser.  Abraham  Jacoby,  adminis- 
trator of  Elias  Klinker,  brought  suit  on  this  bond,  and  sold  a  part 
of  the  land,  which  Elias  had  sold  to  Jacob.  This  suit  was  to  No- 
vember Term,  1823.  Judgment  was  obtained  on  this  suit,  and 
executions  issued  ;  and  a  venditioni  exponas,  to  January,  1825, 
sixty-two  acres  part  of  the  land  was  sold  for  $399. 

A  scire  facias  issued  to  revive  this  judgment,  at  April,  1829, 
and  judgment  was  obtained  at  January  Term,  1830 ;  a  fieri  facais 
to  August,  levied  on  another  part  of  the  land,  and  sold  on  a  ven- 
ditioni exponas,  to  November,  1830.  The  money  produced  by 
this  sale  was  brought  into  court  and  claimed  by  the  plaintiff  in 
the  execution,  and  by  Jacob  Klinker,  the  son  of  Catherine  Harpst, 
who  had  come  of  age,  and  who,  on  the  3d  of  September,  1830, 
filed  a  claim  in  these  words  : 

"Jacob  Klinker,  otherwise  called  Jacob  Harpst,  files  in  the 
office  of  the  prothonotary  of  Northampton  County,  the  following 
copy  of  a  bill  single,  due  by  John  Klinker,  late  of  Hamilton  town- 
ship, in  the  County  of  Northampton,  deceased,  to  him  the  said 
Jacob,  in  pursuance  of  the  act  of  assembly,  passed  the  4th  of 
April,  1797,  entitled  an  act  supplementary  to  the  act  directing  the 
descent  of  intestate  estates — that  is  to  say,"  (here  follows  a  copy 
of  the  single  bill  before  given.) 

The  interest  was  paid  until  1821,  but  it  is  not  .stated  by  whom 
or  to  whom.  An  auditor  appointed  by  the  court  reported  the 
above  facts,  and  also  that  on  the  10th  of  April,  1816,  ten  acres 
eighty-three  perches,  part  of  the  estate  of  John  Klinker,  deceased, 
were  conveyed  by  the  devisees  of  John  Kimble. 

That  in  1817,  Jacob  Klinker  conveyed  two  several  parcels  of 
the  one  hundred  and  thirty-two  acres  allotted  to  him  to  two  dif- 
ferent men — amounting  to  above  sixty  acres. 

That  the  residue  of  the  land  allotted  to  Jacob  was  sold  at 
sheriff's  sale,  on  the  different  execution,  before  suit  brought  on 


60  SUPREME  COURT  [Dec.  Term, 

(Klinker's  Appeal.) 

his  bond  to  Elias,  and  the  money  paid  over  to  the  plaintiffs  in 
said  judgment  and  execution. 

That  in  1817,  Jacob  conveyed  small  parcels  of  the  land  he 
bought  from  Elias,  to  four  different  persons,  amounting  in  all,  to 
about  forty-three  acres. 

That  in  1818,  John  Klinker,  the  son,  conveyed  fifty-nine  acres, 
one  hundred  and  twenty  perches,  part  of  his  share,  to  Jacob,  who, 
r*fi11  **n  1821,  conveyed  it  to  Joseph  Klinker;  and  that  in 
-1  1821,  John  and  Jacob,  as  executors,  conveyed  to  Joseph 
Klinker,  two  lots,  each  of  ten  acres,  being  part  of  the  land 
directed  in  the  will  to  be  sold  for  the  payment  of  the  testator's 
debts. 

That  in  June,  1818,  John  Klinker,  mortgaged  the  residue  of 
the  land  allotted  to  him,  to  his  mother,  to  secure  her  dower  out  of 
the  whole  estate. 

That  the  mortgage  of  the  plaintiff  in  the  execution  was  the  old- 
est lien,  and  entitled  to  the  money,  unless  the  plaintiff's  claim  is 
valid. 

The  court  decided  that  the  plaintiff  in  the  execution  was  enti- 
tled to  the  money,  and  ordered  the  money  to  him. 

Jacob  Klinker,  or  Harpst,  claimed  the  money  under  the  fourth 
section  of  the  act  of  the  4th  of  April,  1797,  which  is  as 
follows : 

"Whereas  inconveniences  may  arise  from  debts  of  a  deceased 
person  remaining  a  lien  on  their  lands  and  tenements  an  indefi- 
nite time  after  their  decease,  whereby  bona  fide  purchasers  may 
be  injured,  and  titles  become  insecure,  be  it  enacted,  that  no  such 
debts,  unless  they  be  secured  by  mortgage,  judgment,  recogni- 
zance, or  other  record,  shall  remain  a  lien  on  such  lands  and  tene- 
ments, longer  than  seven  years  after  the  decease  of  such  debtor, 
unless  an  action  for  the  recovery  thereof  be  commenced  and  duly 
prosecuted  against  his  or  her  heirs,  executor,  or  administrators, 
within  the  said  period  of  seven  years,  or  a  copy  or  particular 
written  statement  of  any  bond,  covenant,  debt  or  demand,  where 
the  same  is  not  payable  within  the  said  seven  years,  shall  be  filed 
within  the  said  period  of  seven  years,  in  the  office  of  the  protho- 
notary  of  the  county,  where  the  lands  lie  :  Provided  ahvays,  that 
a  debt  due  to  a  person  who  at  the  time  of  the  decease  of  the  said 
debtor,  is  a,  feme  covert,  in  his  or  her  minority,  non  compos  mentis, 
in  prison,  or  out  of  the  limits  of  the  United  States,  shall  remain 
a  lien  on  the  said  lands  and  tenements,  (notwithstanding  the  said 
term  be  expired,)  until  four  years  after  discoverture,  or  such  per- 
son shall  have  attained  the  age  of  twenty-one  years,"  &c.  &c. 

Although  the  clause  in  favor  of  married  women,  infants,  &c. 
&c.  is  now  repealed,  *yet  we  must  decide  what  is  the  proper  con- 

*Act  24th  Feb.,  1834,  §  24,  Pur.  Dig.  285,  §  82. 


1835.]  OF  PENNSYLVANIA.  61 

(Klinker's  Appeal.) 

struction  of  it.  It  has  been  contended  that  this,  being  a  statute 
of  limitation,  does  not  apply  to  trustees.  True  no  statute  of 
limitation  applies  to  cases  strictly  between  trustee  and  cestui  que 
trust,  at  least  while  both  parties  act  in  that  capacity,  and  have 
not  denied  it ;  (Blanchard,  75, 6,)  for  the  estate  of  the  two,  or  the 
right  of  the  two,  as  against  the  rest  of  the  world,  is  one  and  the 
same  ;  though  in  some  countries  they  are  suable  in  different  courts. 
But  is  trustee  and  cestui  que  trust  suffer  an  adverse  claimant  to 
possess  lands  for  twenty-one  years,  their  right  is  gone.  If  a 
debt  was  due  to  a  deceased  person,  who  died  after  it  was  due  and 
demandable,  and  his  executor  *or  administrator  suffer  six  r^o-i 
years  to  elapse,  the  statute  is  a  good  plea,  though  the  ex-  I 
ecutor  or  administrator  is  a  trustee  for  creditors  or  heirs  who 
may  be  infants.  A  distinction  has  been  taken,  that  if  a  debt 
become  payable  after  the  death  of  the  creditor,  the  statute  does 
not  run  until  administration  is  taken  out,  for  there  is  no  person 
to  sue;  (Blanchard,  106.)  Admitting  this  to  be  so — though  I 
doubt  its  correctness,  for  if  the  next  of  kin  do  not  administer, 
any  other  may,  and  I  see  no  reason  why  a  simple  contract  debt 
should  be  kept  alive  for  ever,  and-  be  recoverable  after  vouchers 
and  witnesses  were  lost — yet  in  this  case  there  was  a  person  to 
sue,  or  what  was  equivalent,  file  the  claim  agreeably  to  the  direc- 
tions of  the  act. 

It  was  also  urged,  that  the  debt  was  really  due  to,  and  was  the 
property  of  the  present  claimant,  and  not  of  Williams  the  trus- 
tee ;  and  that  infants  are  favored  in  equity  and  law  too.  The 
other  party  reply,  that  secret  liens  are  not  favored.  I  don't 
like  the  phrase  in  legal  proceedings.  It  has  done  some,  perhaps 
much  harm.  The  whole  object  and  effect  of  statutes  of  limita- 
tions have  been  lost,  or  changed  by  some  such  phrases,  and 
opinions  founded  on  them.  So  much  so,  that  in  England  they 
have  by  legislative  enactment  begun  anew.  These  laws,  like  all 
others,  are  now  in  this  country,  construed  agreeably  to  their  ex- 
pression, when  plain ;  or  if  not  explicit,  according  to  their  true 
meaning.  They  may  occasion  a  loss  of  a  just  claim,  but  for  one 
instance  of  this  kind,  they,  in  much  greater  proportion  of  cases, 
save  from  unjust  claims.  As  to  length  of  time,  they  are  obliga- 
tory to  the  letter.  A  day  saves  or  bars  a  claim — because  it  is  a 
legislative  rule  in  a  case  which  required  legislative  interference, 
and  the  rule  must  and  does  apply,  whatever  may  be  thought  of 
the  hardship  of  the  case,  or  it  becomes  no  rule  at  all.  The  law 
is  so  written  to  produce  a  general  good,  and  has  produced  such 
results ;  why  should  it  not  be  so  decided  in  every  respect  ?  What 
effects  will  follow  from  the  plaintiff's  construction?  An  infant 
must  come  of  age  in  twenty  years — but  a  married  woman  may 
live  fifty  years ;  and  a  person  may  live  and  die  out  of  the  United 


62  SUPREME  COURT  [Dec.  Term, 

(Hellings  v.  Amey.) 

States,  and  his  heirs  so  continue  a  century  ;  and  if  the  law  keeps 
a  latent  claim  all  this  time,  a  lien  on  lands  descended,  devised, 
alienated,  or  sold,  by  process  of  law,  why,  we  can't  help  it.  But 
the  law  does  in  terms  not  extend  to  the  case  of  a  legal  creditor 
of  lawful  age,  and  under  no  disability.  Williams  alone  could  sue 
at  law,  and  would  be  barred,  where  there  is  a  Court  of  Law  or  a 
Court  of  Chancery.  Now  it  is  settled,  that  where  the  right  can 
be  prosecuted  and  recovered  at  law,  and  is  neglected  until  the 
statute  is  a  bar,  equity  will  not  relieve ;  (Blanchard,  80, 1.)  We 
affirm  the  decision  of  the  Court  of  Common  Pleas — because  the 
case  does  not  fall  within  the  letter  of  the  act — because  it  does 
not  fall  under  the  decisions  that  the  statute  of  limitation  shall 
not  run,  when  there  in  no  person  to  sue — for  here  was  a  person 
I~*fi31  w^°  ^a(^  auth°rity  to  receive  the  interest,  *and  to  file  the 
'  claim; — and  because,  if  we  make  the  act  apply  to  this 
case,  it  must  also  apply  to  cases  of  trustees  for  married  women, 
and  persons  beyond  sea;  and  we  do  not  believe  if  we  had  the 
power  of  extending  the  act,  it  would  be  in  conformity  with  its 
spirit,  or  for  the  benefit  of  the  community,  to  give  indefinite  coun- 
tenance, continuance  to  a  secret  lien. 

Proceedings  affirmed. 

Cited  by  Counsel,  2  Barr,  92. 

Cited  by  the  Court,  6  Watts,  122. 


[PHILADELPHIA,  JANUARY  14,  1836.] 
HELLINGS  against  AMEY. 

IN  ERROR. 

1.  Where  a  defendant  who  had  been  sentenced  by  a  Court  of  Quarter  Ses- 
sions, upon  a  conviction  of  fornication  and  bastardy,  to  the  payment  of 
a  certain  gross  sum  to  the  mother  of  the  child,  and  also  to  the  payment 
to  her  of  a  weekly  sum  for  a  certain  term,  applied  for  and  obtained  a  dis- 
charge of  his  person  under  the  insolvent  act,  it  was  held  that  the  mother 
might  maintain  an  action  of  debt  upon  the  sentence  of  the  Quarter  Ses- 
sions, to  recover  the  amount  ordered  to  be  paid  to  her. 

2.  The  defendant  in  such  action  having  pleaded  payment,  with  leave  to  give 
the  special  matters  in  evidence,  it  was  held  that  the  plaintiff  was  not 
bound  to  prove  the  averment  in  her  declaration,  that  she  had  maintained 
and  supported  the  child  during  the  term,  for  which  the  defendant  was 
liable  to  pay,  by  the  sentence  of  the  court. 

WRIT  of  error  to  the  Court  of  Common  Pleas  of  Bucks 
county. 

In  the  Court  of  Quarter  Sessions  for  the  county  of  Philadel- 
phia, in  October,  1827,  John  Hellings,  the  plaintiff  in  error,  was 


1835.]  OF  PENNSYLVANIA.  63 

(Hellings  v.  Amey.) 

convicted  of  fornication,  and  bastardy,  and  sentenced  by  the 
court  to  pay  to  the  prosecutrix,  Hannah  Amey,  the  sum  of  fif- 
teen dollars  for  lying-in  expenses,  and  seventy-five  cents  per 
week  for  the  support  of  the  child  from  its  birth,  until  it  should 
arrive  at  the  age  of  seven  years,  and  to  give  bonds  to  the  guardi- 
ans of  the  poor  in  three  hundred  dollars,  to  make  such  payments, 
&c.  On  the  26th  of  June,  1828,  John  Hellings  presented  his 
petition  to  the  Court  of  Common  Pleas  for  the  city  and  county 
of  Philadelphia,  praying  for  the  benefit  of  the  insolvent  laws. 
Hannah  Amey  was  the  only  creditor  returned  by  the  petitioner, 
who  was  discharged  on  the  8th  of  July  following.  To  February 
Term,  1834,  of  the  Court  of  Common  Pleas  of  Bucks  county, 
Hannah  Amey  instituted  an  action  of  debt  against  the  same  John 
Hellings,  in  which  a  declaration  was  filed,  setting  forth  the  sen- 
tence of  the  court  of  Quarter  Sessions ;  and  the  plaintiff  averred 
that  she  had  maintained  and  supported  the  child  from  the  time  of 
its  birth,  until  its  arrival  at  the  age  of  seven  years,  and  that  the 
said  sum  of  fifteen  dollars  for  lying-in  expenses,  and  the  allow- 
ance of  seventy-five  cents  per  week,  had  not  been  paid  to  her  by 
the  defendant;  whereby  an  action  *had  accrued,  &c.  The  r*p^-i 
defendant  pleaded  nul  tiel  record  and  payment,  upon  which  ' 
issue  was  joined.  Upon  the  first  plea  the  court  gave  judgment 
for  the  plaintiff;  and  the  cause  coming  on  for  trial,  on  the  plea 
of  payment,  at  April  Term,  1835,  the  plaintiff  gave  in  evidence 
the  record  of  the  sentence  of  the  Court  of  Quarter  Sessions,  and 
the  petition  of  the  defendant  for  the  benefit  of  the  Insolvent 
Laws.  The  counsel  for  the  defendant  then  prayed  the  court  to 
charge  the  jury  that  the  action  could  not  be  sustained,  and  that 
if  the  action  would  lie,  it  was  necessary  for  the  plaintiff  to  prove 
the  averments  in  the  declaration  respecting  the  maintenance  of 
the  child  by  her,  during  the  term  of  seven  years.  The  court, 
however,  charged  the  jury  upon  these  points  in  favor  of  the 
defendant,  who  excepted  to  the  charge;  and  the  jury  having 
found  for  the  plaintiff,  the  cause  was  removed  to  this  court. 

Errors  having  been  assigned  upon  these  points,  Mr.  Ross  for 
the  plaintiff  in  error  contended, 

1.  That  an  action  did  not  lie  upon  a  sentence  of  the  Court 
of  Quarter  Sessions,  in  a  case  like  the  present ;  the  point  having 
been  expressly  decided  in  Eby  v.   Burkholder,   (17   Serg.   & 
Rawle,  1.) 

2.  That  the  plaintiff  was  bound  to  prove  the  averments  in  the 
declaration ;  in  support  of  which  he  cited,  Eoop  v.  Brubacker,  1 
Rawle,  307. 

Mr.  Porter,  contra. 

VOL.  1. — 5. 


64  SUPREME  COURT  [Dec.  Term, 

(Hellings  t).  Amey.) 

The  opinion  of  the  court  was  delivered  by 

GIBSON,  C.  J. — When  it  was  determined  in  Eby  v.  Burkholder, 
that  an  order  of  maintenance  could  not  be  enforced  by  action,  the 
allowance  to  the  mother  had  acquired  no  quality  of  a  debt.  By 
subjecting  a  sentence  for  the  payment  of  money  to  the  operation  of 
the  insolvent  laws,  as  an  ordinary  duty,  the  legislature  have  author- 
ized the  party  convict  to  treat  it  otherwise.  By  the  seventeenth 
section  of  the  general  insolvent  act,  it  is  directed,  that  "  any  per- 
son who  shall  be  in  confinement  by  order  of  any  court,  until  he 
restore  to  the  owner  any  stolen  goods  or  chattels,  or  pay  the  value 
thereof;  and  any  person  who  shall  be  confined  for  the  payment 
of  any  fine  or  for  the  payment  of  the  costs  of  prosecution  and  for  no 
other  cause,  shall  be  entitled  to  the  benefit  of  this  act."  In  its 
largest  sense,  the  word  fine  includes  the  mulct  for  the  mainten- 
ance of  a  bastard ;  and  the  case  is  clearly  within  the  equity  of 
the  act.  By  the  succeeding  section  it  is  further  directed  that 
persons  confined  for  fines  or  forfeitures,  not  separately  exceeding 
the  sum  of  fifteen  dollars  exclusive  of  the  costs,  be  absolutely 
discharged  by  the  sheriff  at  the  expiration  of  thirty  days;  and 
consequently,  without  cession  of  goods.  This  section  seems 
to  operate  as  a  statutory  commutation  and  pardon ;  but  not  so 
r^r-i  the  preceding  one,  which,  by  *  putting  the  case  of  the 
J  convict  on  the  ordinary  footing  of  insolvency,  discharges 
but  the  person  and  leaves  the  duty  still  in  force.  By  a  discharge, 
then,  under  the  insolvent  laws,  the  remedy  by  commitment  in 
execution  is  gone  ;  and  by  what  other  remedy  than  an  action,  can ' 
the  duty  be  enforced  against  property  subsequently  acquired  ? 
That  the  legislature  intended  that  it  should  be  so  enforced,  is  in- 
ferrible from  their  intent  to  exonerate  no  more  than  the  person ; 
and  where  the  party  convict  procures  such  exoneration,  the  rem- 
edy by  action  results  of  necessity.  In  Eby  v.  Burkholder, 
the  defendant  had  not  been  discharged ;  and  the  nature  of  the 
duty  being  unchanged  by  the  act  of  the  defendant,  there  was  no 
such  necessity  ;  consequently  the  mother  was  not  allowed  to  use 
the  extraordinary  means  for  which  necessity  gives  occasion.  It 
is  entirely  consistent  with  that  case,  therefore,  to  say,  that  in  the 
circumstances  of  the  present,  recourse  to  an  action  was  en- 
tirely proper.*  The  question  put  to  the  court  on  the  effect  of 
the  proof,  was  also  properly  ruled.  The  plaintiff  averred  that 
she  had  maintained  the  bastard  at  her  own  charge  during  the  en- 
tire period ;  and  to  this  the  defendant  pleaded  payment ;  which, 
by  every  rule,  was  an  admission  of  the  whole  declaration,  except 
the  particular  part  of  it  put  in  issue.  It  is  true  the  fact  of  pay- 
ment was  pleaded,  "  with  leave  to  give  the  special  matters  in  evi- 

*  To  the  contrary,  6  Hards,  116. 


1835.]  OF  PENNSYLVANIA.  65 

(Fritz  v.  Thomas.) 

dence,"  which  by  our  practice  makes  way  but  for  an  equity  where 
there  is  one  ;  but  where  there  is  none,  the  leave  thus  taken  goes 
for  nothing,  and  the  plea  has  no  more  than  its  common  law  effect. 
But  even  where  it  is  properly  pleaded,  it  has  not  the  properties  of 
a  general  issue  plea ;  its  office  being  to  confess  and  avoid,  by  the 
introduction  of  the  special  matter  relied  upon.  The  burden  of 
proving  the  issue,  therefore,  lay  on  the  defendant,  and  the  jury 
were  rightly  instructed  that  the  failure  was  on  his  part. 

Judgment  affirmed. 
Cited  by  Counsel,  6  Watts  &  Sergeant,  86. 
Cited  by  the  Court,  1  Jones,  174 ;  12  Harris,  515. 


[*  PHILADELPHIA,  JANUARY  14,  1836.]  f*661 

FRITZ  against  THOMAS  and  Another. 

IN  ERROR. 

An  executor  or  administrator,  sued,  in  his  representative  character,  for  a 
debt  due  by  the  decedent,  may  plead  the  statute  of  limitations  as  a  bar 
to  the  action,  although  such  executor  or  administrator  may  have  made 
such  an  acknowledgment  of  the  debt,  as,  in  the  case  of  a  person  sued  for 
his  own  debt,  would  be  sufficient  to  take  the  case  out  of  the  statute. 

UPON  a  writ  of  error  to  the  Court  of  Common  Pleas  of  the 
County  of  Montgomery,  it  appeared  that  Christian  Fritz  brought 
an  action  of  assumpsit,  in  that  court,  to  November  Term,  1833, 
against  Charles  Thomas  and  Merchant  Maulsby,  administrators 
of  the  goods,  &c.,  of  George  Fitzwater,  deceased,  to  recover  the 
amount  of  a  promissory  note  for  71  dollars,  dated  the  30th  day  of 
December,  A.  D.  1818,  drawn  by  the  said  George  Fitzwater, 
in  his  life  time,  in  favor  of  the  said  Christian  Fritz.  The  dec- 
laration averred  a  promise  by  the  intestate,  in  his  life  time,  and 
also  a  promise  by  the  administrators,  after  his  death,  to  pay  the 
amount  of  the  said  note.  The  defendants  pleaded  "  non  assump- 
sit, non  assumpsit  infra  sex  annos,  actio  non  accredit  infra  sex 
annos,  and  payment;"  and  issue  having  been  joined  upon  these 
pleas,  the  cause  came  on  for  trial  upon  the  26th  of  November, 
1834. 

The  plaintiff  having  proved  the  hand-writing  of  the  intestate, 
offered  the  note  in  evidence,  which  was  objected  to  by  the  defend- 
ant and  rejected  by  the  court ;  who  decided  that  the  note  being 
on  its  face  barred  by  the  statute  of  limitations,  could  not  be  ad- 
mitted as  evidence  of  a  debt,  until  proof  of  a  promise  to  pay 
within  six  years  was  first  given.  The  plaintiff  then  called  Wil- 
liam Wright,  a  witness,  who  being  sworn,  testified  as  follows : 


66  SUPREME  COURT.  [Dec.  Term, 

(Fritz  ti.  Thomas. 

"  I  was  present  when  Christian  Fritz  presented  the  note  to 
Charles  Thomas,  in  January,  1832.  Mr.  Fritz  stated  that  he  had 
a  claim  against  the  estate  of  George  Fitzwater,  to  which  Mr. 
Thomas  replied,  '  you  have  just  come  in  time.'  On  reading  the 
note  Mr.  Thomas  said,  '  it  is  too  old,  you  should  have  collected  it 
sooner.'  Fritz  said,  owing  to  the  removal  of  Mr.  Fitzwater  it 
was  out  of  his  power ;  that  he  had  sought  after  him  but  could  not 
find  him.  On  examining  the  note,  Mr.  Thomas  calculated  the  in- 
terest upon  it.  Then  stating  to  Mr.  Fritz,  '  if  you  can  get  the 
principal  I  suppose  that  will  satisfy  you  without  the  interest.' 
Mr.  Fritz  replied,  '  why  not  both,  or,  how  is  the  estate  likely  to 
hold  out  ?'  Mr.  Thomas  said  it  was  likely  to  hold  out  so  that 
there  would  be  nothing  left  for  the  widow.  Some  conversation 
then  took  place  which  has  escaped  my  memory,  but  the  tenor  of 
r*f"*i  it  was  Mr.  Thomas  was  endeavoring  to  get  Mr.  *  Fritz  to 
J  abate  the  interest  in  favor  of  the  widow,  and  Mr.  Fritz  en- 
deavoring to  obtain  Mr.  Thomas'  promise  to  pay  both  principal 
and  interest ;  at  the  close  of  this,  Mr.  Fritz  said,  '  if  I  take  only 
the  principal,  I  shall  expect  to  get  it  without  further  trouble.' 
Mr.  Thomas  replied,  '  I  have  not  funds  in  hand  to  pay  you — but, 
the  debt  its  a  juat  one,  1  will  see  my  colleague  and  we  will  do 
ivhat  we  can  for  you.  This  I  will  do,  I  have  a  note  here  against 
one  of  your  neighbors,  which  I  will  trade  with  you,  and  as  you 
live  near  him  you  can  trade  it  out  with  him  ;'  he  then  presented 
a  note  he  held  against  Andrew  Scott :  the  exact  amount  of  Scott's 
note  I  do  not  recollect,  but  it  was  more  than  Fitzwater's.  On 
Mr.  Thomas  presenting  the  note  he  said,  '  he  had  not  done  as  Mr. 
Fritz  had  done,  he  had  kept  the  interest  down.'  Mr.  Fritz  re- 
plied, '  if  I  were  Andrew  Scott's  administrator,  as  you  are  George 
Fitzwater's,  I  would  trade.  But  Mr.  Scott  is  an  old  man, 
who  has  been  much  embarrassed  and  is  now  doing  better.  If 
I  were  to  do  it,  it  might  discourage  him :  I  should  not  like 
to  do  it  without  saying  something  to  him  first.'  Thomas  then  re- 
quested that  he  would  see  Scott  concerning  it ;  and  then  stated 
he  would  also  see  his  colleague  concerning  Fitzwater's  note. 
Mr.  Thomas  read  the  note  twice.  Mr.  Thomas  and  myself  both 
made  a  calculation  of  the  interest.  The  calculation  of  interest 
took  place  before  he  asked  that  it  should  be  abated.  Fritz  said 
he  would  not  agree  to  let  the  interest  go  into  the  general  fund ; 
but,  if  reserved  for  the  widow,  he  would  like  to  have  the  pleasure 
of  presenting  it  to  her  himself.  This  was  when  Thomas  was  en- 
deavoring to  persuade  him  to  give  up  the  interest  in  favor  of  the 
widow.  There  was  a  difference  between  Scott's  note  and  Fitz- 
water's note.  Scott's  was  the  largest.  Thomas  said  if  the  trade 
took  place,  Fritz  must  pay  the  difference.  This  conversation 
was  in  Mr.  Thomas'  house,  when  we  were  just  starting.  At  the 


1835.]  OF  PENNSYLVANIA.  67 

(Fritz  v.  Thomas.) 

wagon,  Mr.  Thomas  again  said,  I  will  see  my  colleague  and  '  we 
will  do  what  we  can  for  you?  Thomas  made  no  remark  before 
reading  the  note,  except  *  you  have  just  come  in  time.'  All  the 
rest  was  said  after  the  note  was  read.  Andrew  Scott's  note  was, 
I  think,  in  favor  of  Charles  Thomas.  I  saw  the  note,  it  was  a 
sealed  note.  I  have  seen  the  same  note  since  that  time." 
.  On  his  cross-examination,  the  witness  answered  as  follows : 

"  I  don't  know  which  note  was  the  oldest ;  as  to  the  original 
dates,  the  dates  were  not  far  apart.  Scott  had  been  sold  out  by 
the  sheriff.  I  did  not  hear  Thomas'  say  he  considered  Scott's 
note  good  for  nothing.  Mr.  Fritz  did  not  bring  me  along  as  a 
witness  in  the  matter,  to  my  knowledge.  The  reason  I  was  with 
Mr.  Fritz  was,  I  had  business  with  one  of  Mr.  Thomas'  neigh- 
bors, Moses  Lukens.  Mr.  Fritz  went  with  me  there,  before  we 
went  to  Thomas'..  The  family  of  Mr.  Thomas,  Moses  Lukens,  Mr. 
Fritz,  myself  and  Mr.  *Thomas,  were  present  at  Thomas'  at  r^n-i 
this  conversation.  Scott's  note  was  not  100  dollars  more  ' 
than  Fitzwater's.  From  conjecture  I  would  say  it  was  20  dollars 
more.  Can't  say  whether  above  or  below.  I  do  not  remember 
that  Thomas  told  Fritz,  that  if  he  would  give  him  the  difference, 
he  might  have  both  notes.  There  was  no  conversation  between 
Mr.  Fritz  and  myself  on  this  subject  afterwards,  except  that 
going  home  I  told  him  I  thought  he  would  get  the  business  settled' 
without  difficulty.  All  the  reply  he  made  was,  '  I  don't  know ; ' 
he  made  no  remark  about  apprehending  difficulty.  In  offering 
Scott's  note,  Thomas  said,  I  have  here  a  note  of  one  of  your 
neighbors,  which  I  will  trade  with  you  for  yours ;  I  can't  be 
certain,  but  my  impression  is,  Thomas  went  out  of  the  room,  to 
get  Scott's  note.  Mr.  Thomas  did  not  say  in  my  hearing,  he 
considered  Scott's  note  good  for  nothing.  I  did  not  state  before 
the  arbitrators  that  Mr.  Thomas  intimated  he  considered  Scott's 
note  good  for  nothing.  I  did  not  hear  Mr.  Thomas  tell  Mr. 
Fritz,  he  had  better  present  the  note  before  the  auditors.  I  have 
no  recollection  of  any  thing  being  said  at  this  interview  about  an 
audit.  I  have  a  recollection  there  was  an  audit  upon  Fitzwater's 
estate." 

On  a  re-examination,  the  witness  testified  further  as  follows : 
"  Mr.  Fritz  stated  at  the  first  interview,  that  he  must  owe 
Scott  near  30  dollars.  Scott  was  a  wheelwright;  Fritz  and 
Fitzwater  lived  eight  or  nine  miles  apart,  at  the  date  of  the  note. 
At  the  date  of  the  note,  Fritz  lived  in  Warwick  township,  Bucks 
county,  twenty-three  miles  from  Philadelphia,  and  seventeen  or 
eighteen  from  Norristown.  The  principal  due  on  Fitzwater's  note, 
as  calculated  by  myself  and  Mr.  Thomas,  was  56  dollars  principal, 
and  interest  43  dollars  and  68  cents,  amounting  to  99  dollars  68 
cents :  there  was  no  difference  between  us  as  to  the  amount." 


68  SUPREME  COURT  [Dec.  Term, 

(Fritz  v.  Thomas.) 

And  the  plaintiff  further  to  maintain  the  issue  on  his  part, 
again  called  the  said  William  Wright,  who  testified  as  follows : 

u  At  the  time  of  the  arbitration  of  this  cause,  the  question 
was  put  by  one  of  the  arbitrators,  '  Well,  Mr.  Thomas,  you  did 
promise  to  pay  this  note  ? '  Mr.  Thomas  replied,  '  Yes,  with  this 
note,  and  we  will  do  it  yet.'  This  last  note  was  Mr.  Scott's 
note  and  was  there  at  the  time.  At  the  time  the  conversation 
took  place  at  Mr.  Thomas'  house,  I  thought,  and  still  think  Scott 
was  at  that  time  able  to  pay  the  note,  and  was  of  property  suffi- 
cient to  pay  it.  I  am  not  so  well  acquainted  with  him  now." 

The  note  was  then  again  offered  in  evidence,  and  objected  to 
by  the  defendants'  counsel ;  and  the  court,  being  of  opinion  that 
the  evidence  was  insufficient  to  take  the  case  out  of  the  statute 
of  limitations,  refused  to  admit  it.  No  other  evidence  having 

T*fiQ1  ^een  e*ven  on  *tne  Par*  °f  ^e  Pontiff*  the  president  of 
'  the  court  charged  the  jury  as  follows : 

"  There  is  no  evidence  before  the  jury,  upon  which  they  can 
find  a  verdict  for  the  plaintiff.  The  claim  of  the  plaintiff  appears 
by  his  declaration  to  be  found  upon  a  note,  dated  30th  Decem- 
ber, 1818,  payable  in  twenty  days  after  date.  And  upon  its 
face,  recovery  is  barred  by  the  statute  of  limitations.  The  court 
decided  that  that  note  could  not  be  given  in  evidence,  unless  proof 
of  a  new  promise  to  pay  within  six  years  first  given.  At  one 
time,  the  courts  not  only  of  Pennsylvania,  but  elsewhere,  con- 
sidered almost  any  acknowledgment,  however  slight,  of  the  ori- 
ginal debt,  sufficient  to  take  the  case  out  of  the  statute,  but  of 
late  years  the  statute  has  grown  into  favor ;  and  the  courts  have 
retraced  their  steps,  and  held  it  as  awise  and  beneficial  law.  A 
simple  acknowledgment  that  the  debt  was  originally  just,  is  not 
enough.  It  must  go  to  the  fact  that  it  is  still  due,  or  be  accom- 
panied with  some  proof  of  a  clear  and  explicit  promise  to  pay. 
If  there  be  accompanying  circumstances,  which  repel  the  pre- 
sumption of  a  promise  or  intention  to  pay  ;  if  the  expression  be 
equivocal,  vague,  undeterminate,  leading  to  no  certain  conclusion, 
but  at  most  to  probable  inferences,  which  may  affect  different 
minds  different  ways  ;  it  is  not  sufficient  evidence  of  a  new  pro- 
mise, for  the  party  to  recover  upon.  In  the  case  before  you,  the 
court  consider  the  evidence  offered  of  a  new  promise,  as  of  this 
Character ;  and  have  therefore  not  suffered  the  evidence  of  the 
or^^inal  debt  to  be  laid  before  you  ;  there  is  consequently  no  evi- 
denceNtefore  you,  upon  which  you  can  find  a  verdict  for  the  plain- 
tiff;  anchnt  must  be  given  for  the  defendants." 

The  jury  ilmving  found  for  the  defendants,  the  record  was  re- 
moved into  this  £nyirt  by  the  plaintiff ;  who  assigned  several  errors 
which  may  be  compvised  into  two. 


1835.]  Otf  PENNSYLVANIA.  69 

(Fritz  v.  Thomas.) 

1.  The  refusal  of  the  court  below,  to  admit  the  note  in  evidence 
in  the  first  instance. 

2.  The  refusal  of  the  court  below,  to  allow  the  note  to  go  to  the 
jury,  after  the  evidence  of  a  new  promise  had  been  given. 

Mr.  Sterigere,  for  the  plaintiff  in  error,  contended  that  the 
court  was  wrong  in  refusing  to  admit  the  note  in  evidence.  The 
plaintiff  had  a  right  to  read  it  to  the  jury.  Its  effect  afterwards 
was  another  question.  Upon  this  point  he  cited  Hershey  v.  Her- 
shey, (8  Serg.  &  Rawle,  333 ;)  Patton  v.  Ash,  (7  Serg.  &  Rawle, 
127  ;)  Fisher  v.  Kean,  (1  Watts,  278.)  He  then  argued  that  there 
was  sufficient  proof  of  a  new  promise,  to  take  the  case  out  of 
the  statute  of  limitations.  2  Penn.  Practice,  81  ;  M'-Growan  v. 
M<  <3W<m,(Wallace,66 ;)  Fries  v.  Boisselet,  (9  Serg.  &  R.  128 ;) 
G-uier  v.  Pearce*(%  P.  A.  Browne,  37  ;)  Miles  v.  Moodie,  r*»m 
(3  Serg.  &  R.  211 ;)  Jones  v.  Moore,  (5  Binn.  573,  &c.;)  L 
Henwood  v.  Gheeseman,  (3  Serg.  &  R.  500 ;)  Boggs  v.  Bard, 
(2, Rawle,  102,)  in  which  case  this  point  was  expressly  decided  ; 
Johnson  v.  Beardslee,  (15  Johns.  Rep.  3  ;)  Bailey  v.  Bailey , 
(14  Serg.  &  R.  199.) 

Mr.  Tilghman,  for  the  defendants  in  error. 

This  court  will  not  send  the  case  to  another  jury  if  upon  the 
whole  the  law  was  correctly  laid  down.  Weidler  v.  The  Farmers' 
Bank,  (11  Serg.  &  R.  141.)  The  judge  charged  the  jury  in 
nearly  the  same  "words  as  those  used  by  the  Supreme  Court  of 
the  United  States  in  Bell  v.  Morrison,  (1  Peters,  362.)  It  is 
settled  by  a  long  series  of  decisions  in  this  state,  that  to  take  a 
case  out  of  the  statute,  there  must  be  something  said,  equivalent 
to  a  promise  to  pay.  Here,  there  is  nothing  like  a  promise.  Be- 
sides, in  this  case  the  defendants  were  the  administrators  of  the 
drawer  of  the  note ;  and  a  distinction  exists  between  the  case  of 
a  party  acting  in  his  own  behalf,  and  in  a  representative  charac- 
ter. Peck  v.  Bosworth,  (7  Conn.  Rep.  172.)  Here,  the  acknow- 
ledgment, if  it  can  be  so  called,  was  made  by  one  of  two  admin- 
istrators, which  is  not  sufficient.  Scull  v.  Wallace,  (15  Serg.  & 
Rawle,  233,  234.) 

The  opinion  of  the  court  was  delivered  by 

GIBSON,  C.  J. — The  concession  that  the  plaintiff's  claim  is  just, 
and  the  promise  to  see  what  could  be  done  for  him,  would  doubt- 
less be  sufficient  to  maintain  an  action,  if  the  consideration  were 
the  defendants'  own  debt.  But  can  any  acknowledgment  by  an 
executor  or  administrator,  preclude  him  from  pleading  the  statute 
of  limitations  to  a  count  on  the  original  cause  of  action  ?  In 
Jones  v.  Moore,  5  Binney,  573,  and  subsequently  in  Bailey  v. 


70  SUPREME  COURT  [Dec.  Term, 

(Fritz  t.  Thomas.) 

Bailey,  14  Serg.  &  llawle,  195,  and  Scull  v.  Wallace,  15  Serg.  & 
Rawle,  231,  it  was  doubtless  taken  for  granted,  that  a  recovery 
may  be  had  against  a  plea  of  the  statute,  on  proof  of  an  acknow- 
ledgment by  the  personal  representative.  But  it  is  to  be  remarked, 
that  the  point  has  not  been  adjudged,  and  that  no  recovery  has  in 
fact  been  had  ;  and  the  inquiry  is  consequently  not  clogged  by 
the  authority  of  a  precedent.  In  respect  to  the  first  of  those 
cases,  it  is  fair,  too,  to  say  it  was  the  first  step  taken  by  this,  or 
perhaps  any  other  court,  in  returning  to  the  spirit  and  letter  of 
the  statute.  But  when  it  was  determined  that  a  recognition 
of  the  old  debt  is  no  more  than  evidence  of  a  new  promise, 
which,  when  made  to  the  representative  of  a  decedent,  can  be 
sued  by  him  but  in  a  personal  character,  it  was  virtually  de- 
termined that  the  same  recognition  by  a  personal  representa- 
tive, is  but  evidence  of  a  new  promise,  on  which  he  may  not  be 
sued,  otherwise  than  in  his  personal  character,  without  overturn- 
r*~i-\  ing  *some  of  the  most  firmly  fixed  principles  of  the  law; 
J  for  nothing  is  better  settled  than  that  an  executor  or  ad- 
ministrator is  answerable  in  his  official  character,  for  no  cause  of 
action,  that  was  not  created  by  the  act  of  the  decedent  himself; 
and  it  is  therefore  singular,  that  the  principle  in  its  application 
to  these  convergent  propositions,  was  not  carried  out.  In  actions 
against  the  personal  representative,  on  his  own  contracts  and 
engagements,  though  made  for  the  benefit  of  the  estate,  the  judg- 
ment is  de  boni«  propriis  ;  and  he  is,  by  every  principle  of  legal 
analogy,  to  answer  it  with  his  person  and  property.  The  plead- 
ings, it  is  true,  have  not  hitherto  been  moulded  to  the  new  prin- 
ciple ;  nor  could  they  be  in  the  case  of  an  acknowledgment  by  a 
personal  representative,  whose  promise  gives  no  action  against 
him,  unless  it  be  sustained  by  some  other  consideration  than  the 
previous  debt,  which  imposes  no  moral  obligation  to  pay  it  out  of 
his  own  pocket,  especially  since  he  has  been  deprived  of  all  color 
of  title  to  the  residue.  Had  the  judges,  when  they  determined 
that  a  promise  to  the  representative  of  a  decedent  must  be 
declared  on  as  such,  also  determined  that  it  must  be  declared 
on  as  such,  when  made  by  him,  they  would  have  restored  the 
law  to  its  primitive  symmetry,  and  suggested  a  principle  that 
would  have  entirely  extinguished  the  notion  of  revival,  which,  for 
want  of  it,  seems  to  have  lingered  in  its  embers  through  the  suc- 
ceeding cases ;  for  the  forms  of  the  law  are  the  indices  and  con- 
servatories of  its  principles.  It  would  not  only  have  indicated 
the  necessity  of  a  special  consideration,  to  support  the  promise  of 
a  representative,  but  it  would  have  disclosed  a  bar  to  an  action 
against  two  or  more,  on  a  promise  by  one.  And  as  he  cannot 
charge  himself  personally  without  a  new  consideration,  he  cannot 
charge  the  estate,  on  the  foundation  of  the  old  one,  to  the  pre- 
judice of  the  creditors,  whose  fund  might  be  materially  lessened 


1835.]  OF  PENNSYLVANIA.  71 

(Fritz  v.  Thomas.) 

by  it.  He  is  not  bound  to  plead  the  statute,  because  he  may 
know  the  debt  to  be  a  just  one ;  and  for  that  reason  only,  the 
matter  is  left  to  his  discretion ;  but  it  follows  not,  that  he  may  tie 
up  his  hands  from  using  it,  when  the  time  comes,  by  a  mistaken 
concession,  or  an  engagement  which  has  no  consideration  to  bind 
him  personally  or  officially.  Besides,  it  would  be  hazardous  to 
expose  the  estate  to  the  consequences  of  his  inexperience  or  ignor- 
ance of  the  demands  made  upon  him.  We  know  how  perilous  a 
thing  it  is  for  the  debtor  himself,  though  armed  with  knowledge 
and  vigilant  to  guard  against  surprise,  to  converse  about  a  debt 
barred  by  the  statute ;  but  the  peril  would  be  overwhelming,  if 
the  estate  were  to  be  jeoparded  by  the  mistakes  of  one,  who  is 
bound  to  parley,  and  has  not  only  everything  to  learn,  but  to 
learn  it  from  those  whose  interest  it  is  to  mislead  him.  Why, 
then,  should  we  not  finish  what  was  so  well  begun  in  Jones  v. 
Moore,  by  making  the  law  of  the  subject  consistent  in  all  its  parts, 
and  giving  to  the  statute  entire  effect,  both  in  substance  and  in 
form.  To  do  so,  would  involve  no  violation  of  that  *case  as  a 
precedent,  for,  as  I  have  said,  the  point  was  not  adjudged;  r^sy\ 
and  the  step  remaining  to  be  taken  in  the  progress  of  de-  •• 
parture  from  the  doctrine  of  revival,  is  no  greater  than  was  taken 
there.  Indeed,  there  is  no  course  open  to  us,  but  to  follow  the 
principle  out,  or  abandon  it  altogether ;  for,  to  be  consistent,  we 
must  either  return  to  the  doctrine  of  revival  without  qualification, 
or  maintain  that  an  action  on  his  own  promise,  lies  not  against  an 
executor  or  administrator  in  his  official  character.  And  for 
saying  it  does  not,  we  have  the  authority  of  Thompson  v.  Peters, 
12  Wheat.  565,  and  Peck  v.  Botsford,  7  Conn.  R.  178;  in  both 
of  which,  the  point  was  directly  ruled.  There  was,  therefore, 
nothing  to  leave  to  the  jury ;  and  the  exclusion  of  the  evidence, 
as  well  as  the  direction  to  find  for  the  defendants,  was  entirely- 
proper. 

Judgment  affirmed. 

Cited  by  Counsel,  2  Wharton,  300 ;  3  Id.  101 ;  9  Watts,  180  ;  6  Watts  & 
Sergeant,  216 ;  1  Barr,  56 ;  3  Id.  112 ;  8  Id.  189,  340,  511 ;  8  Harris,  212 ; 
7  Casey,  236. 

Cited  by  the  Court  below,  4  Barr,  59. 

Cited  by  the  Court,  4  Wharton,  479  ;  5  Barr,  226 ;  6  Id.  270 ;  2  Jones, 
66 ;  2  Harris,  356 ;  11  Id.  96 ;  10  Wright,  242. 

Followed,  7  Watts,  421. 


72  SUPREME  COtRT  [Dec. 

[PHILADELPHIA,  JANUARY  14,  1836.  ] 

« 

THE  PHILADELPHIA  LIBRARY  COMPANY  against 
INGHAM. 

IN  ERROR. 

1.  The  owner  of  a  Ground  Rent,  in  fee,  is  not  liable  for  any  part  of  the 
taxes  assessed  upon  the  land,  out  of  which  the  rent  issues. 

2.  The  decision  of  the  president  Judge  of  the  Court  of  Common  Pleas, 
upon  an  exception  to  his  jurisdiction,  under  the  act  relating  to  Special 
Courts,  cannot  be  reviewed  in  this  court';  it  being  a  matter  entirely 
within  his  discretion. 

THIS  was  a  writ  of  error  to  the  Court  of  Common  Pleas  of 
Bucks  County,  to  remove  the  record  in  an  action  of  replevin, 
brought  to  September  Term,  1833,  of  that  Court,  by  Samuel  D. 
Ingham,  against  Thomas  Sands,  constable  of  Solebury  Township, 
for  a  quantity  of  hay. 

The  defendant,  Sands,  made  cognizance  as  the  bailiff  of  the 
Library  Company  of  Philadelphia,  for  the  use  of  the  Loganian 
Library,  as  follows: 

"And  the  defendant,  by  Mathias  Morris,  his  attorney,  comes 
and  defends  the  wrong  and  injury,  when,  &c.,  and  as  the  bailiff 
of  the  Library  Company  of  Philadelphia,  in  trust  for  the  use  of 
the  Loganian  Library,  well  acknowledges  the  taking  of  the  said 
goods  and  chattels  in  the  said  declaration  mentioned,  in  the 
plaintiff's  barn  and  justly  detained  the  same  for  the  sum  of 
twenty-five  pounds  *sterling,  as  for  and  in  the  name  of  a 
distress  for  rent  due  and  in  arrear  to  the  said  Library 
Company,  because  he  says,  that  by  a  certain  lease  by  indenture, 
dated  the  1st  day  of  May,  1747,  and  duly  recorded  in  the  office 
for  Recording  of  Deeds,  in  and  for  the  County  of  Bucks,  from 
James  Logan  to  Jonathan  Ingham,  he  the  said  James  Logan,  for 
himself,  his  heirs  and  assigns,  did  grant  and  demise  to  the  said 
Jonathan  Ingham,  his  heirs  and  assigns,  a  certain  piece  or  tract 
of  land,  situate  in  the  said  township  of  Solebury,  containing  three 
hundred  and  ninety-six  acres  and  one  hundred  and  twenty  perches 
of  land,  with  the  appurtenances,  at  and  under  a  certain  yearly 
rent,  to  wit:  the  yearly  rent  of  twenty-five  pounds  sterling,  in 
English  money,  to  be  paid  to  him,  the  said  James  Logan,  his 
heirs  and  assigns,  from  and  after  the  1st  day  of  March,  in  the 
year  1760,  for  and  during  the  full  term  of  one  hundred  years, 
then  next  ensuing,  that  is,  until  the  year  1860,  which  said  piece 
or  tract  of  land,  with  the  appurtenances,  to  wit,  the  barn  of  the 
plaintiff  aforesaid,  is  the  same  whereon  the  goods  and  chattels 
in  the  declaration  mentioned,  were  taken  and  detained  by  the 
defendant  aforesaid;  and  the  said  defendant,  by  his  attorney, 
saith,  that  the  said  Library  Company  of  Philadelphia,  in  trust 


1835.]  OF  PENNSYLVANIA.  73 

(Philadelphia  Library  Company  v.  Ingham.) 

for  the  use  of  the  Loganian  Library,  became,  and  were  at  the 
time  of  the  taking  aforesaid,  entitled,  by  virtue  of  good  and  suffi- 
cient assurances,  to  receive  the  yearly  rent  of  twenty-five  pounds 
sterling  from  the  plaintiff,  who,  at  the  time  of  the  taking  afore- 
said, held  and  occupied  the  said  land  and  premises,  under  and  by 
virtue  of  the  lease  aforesaid,  from  the  said  James  Logan  to  the 
said  Jonathan  Ingham,  his  heirs  and  assigns:  and  the  said  de- 
fendant, by  his  attorney,  further  saith,  that  the  said  yearly  rent 
and  sum  of  twenty-five  pounds  sterling,  in  English  money,  was 
due,  in  arrear,  and  unpaid  from  the  said  plaintiff  to  the  said 
Library  Company  of  Philadelphia,  for  the  use  aforesaid,  for  the 
term  and  period  of  one  year,  then  last  past,  on  the  1st  day  of 
March,  1883,  and  is  still  in  arrear  and  unpaid,  and  this  the  said 
defendant  is  ready  to  verify,  whereof,  &c." 

The  counsel  of  Mr.  Ingham  filed  the  following  plea : 

"October  31st,  1834.  Defendant"  (meaning  the  plaintiff,) 
"  pleads  payment  and  no  rent  in  arrear,  and  replies  that  he  is 
not  liable  to  pay  the  sum  of  twenty -five  pounds  sterling,  per  year, 
to  any  one,  and  that  he  is  liable  to  pay  no  more  than  the  balance 
of  the  said  sum,  after  the  taxes  upon  the  land  and  rent-charge  are 
first  deducted,  and  that  the  plaintiffs  (meaning  the  defendants)  in 
said  suit,  have  no  right  to  recover  any  thing  of  him." 

On  the  6th  of  November,  1834,  the  cause  came  on  for  trial, 
when  the  jury  was  sworn  as  between  Samuel  D.  Ingham,  plaintiff, 
and  the  Library  Company  of  Philadelphia,  in  trust  for  the  use  of 
the  Loganian  Company,  defendants. 

*  On  the  trial,  it  appeared  that  by  indenture  dated  the  r*»r,n 
1st  of  May,  1747,  James  Logan,  granted  three  hundred  ^ 
and  ninety-six  acres  and  three-quarters  of  land  in  Solebury  town- 
ship, Bucks  County,  to  Jonathan  Ingham,  his  heirs  and  assigns 
forever;  "  he  and  they  paying  to  the  said  James  Logan,  his  heirs 
and  assigns,  for  the  first  seven  years,  from  and  after  the  1st  day 
of  March,  1753  (4)  the  sum  of  twenty-one  pounds  sterling 
money,  as  it  passes  in  the  kingdom  of  England,  on  the  1st  day  of 
March  in  every  year,  for  and  during  the  full  term  of  seven  years, 
the  first  payment  whereof  to  be  on  the  1st  day  of  March,  1754 
(5),  and  yielding  and  paying  to  him,  the  said  James  Logan,  his 
heirs  and  assigns,  from  and  after  the  expiration  of  the  seven  years, 
for  and  during  the  full  term  of  one  hundred  years,  then  next  en- 
suing, the  yearly  rent  or  sum  of  five  and  twenty  pounds,  sterling 
money  aforesaid,  as  it  shall  pass  in  the  kingdom  of  England,  on 
the  1st  day  of  March,  yearly ;  the  first  payment  of  which^last 
mentioned  rent,  is  to  be  made  on  the  1st  day  of  March,  1761 ; 
and  after  the  expiration  of  the  last  mentioned  term,  that  is  to  say, 
the  term  of  one  hundred  and  seven  years  from  the  time  of  the 
first  entry  on  the  said  land,  in  pursuance  of  the  said  grant,  which 


74  SUPREME  COURT  [Dec.  Term, 

(Philadelphia  Library  Company  t?.  Ingham.) 

will  be  in  the  year  of  our  Lord  1861,  and  said  tract  of  land  and 
plantation,  with  all  the  improvements  thereon,  are  to  be  valued  by 
four  judicious  and  impartial  men,  to  be  indifferently  chosen  by  the 
heirs  and  assigns  of  the  said  James  Logan,  and  the  executors,  ad- 
ministrators and  assigns  of  the  said  Jonathan  Ingham ;  and  by 
and  how  much  the  true  value  of  the  said  land  and  improvements 
shall,  in  the  estimation  of  the  said  four  persons,  exceed  the  rent 
in  the  said  deed,  before  reserved,  one  full  half  part  or  moiety  of 
the  said  excess,  shall  be  added  to  the  rent  before  last  mentioned 
in  the  said  deed,  and  thereby  reserved,  and  from  that  time,  shall 
become  a  new  rent,  and  shall  be  yearly  yielded  and  duly  paid  to 
the  heirs  or  assigns  of  the  said  James  Logan,  by  the  executors, 
administrators  or  assigns  of  the  said  Jonathan  Ingham,  on  the  1st 
day  of  March,  yearly,  forever.  And  in  like  manner,  the  like  pro- 
ceedings shall  be  renewed  at  the  expiration  of  every  term  of  one 
hundred  and  twenty-one  years  thereafter." 

By  force  and  virtue  of  divers  conveyances  and  assurances  in 
law,  and  of  an  act  of  assembly,  passed  the  31st  of  March,  1792, 
annexing  the  Loganian  Library  to  the  Library  Company  of  Phila- 
delphia, the  land  above  described,  charged  with  the  above  men- 
tioned rent,  became  vested  in  Samuel  D.  Ingham,  the  defendant 
in  error,  and  the  rent  so  charged  became  vested  in  the  Library 
Company  of  Philadelphia,  in  trust  for  the  use  of  the  Loganian 
Library,  the  plaintiffs  in  error. 

On  the  1st  of  March,  1833,  one  year's  rent,  amounting  to 
twenty-five  pounds  sterling,  or  one  hundred  and  eleven  dollars 
and  eleven  cents,  became  due ;  and  on  the  1st  of  August,  1833, 
Mr.  Ingham  paid  the  sum  of  eighty-three  dollars  and  eleven  cents, 
r*7^1  on  accoun^  *°f  the  said  rent  charge,  retaining  a  balance 
•"  of  twenty-eight  dollars,  which  sum  he  alleged  was-  the  pro- 
portion for  which  the  rent  was  liable  for  taxes,  and.  therefore  he 
claimed  a  right  to  deduct  it.  This  balance  was  the  matter  in  dis- 
pute, the  Library  Company  contending  that  the  said  rent  was  not 
chargeable  with  so  large  a  proportion  of  taxes,  the  same  having 
been  estimated  above  its  par  value.  The  Library  Company 
therefore  distrained  for  the  rent  alleged  to  be  in  arrear,  and  Mr. 
Ingham  replevied  the  goods  distrained. 

The  question  relative  to  the  par  value  of  this  rent-charge  was 
brought  before  the  Court  of  Common  Pleas  of  Bucks  County,  for 
their  opinion,  by  a  petition  presented  by  the  Library  Company  to 
September  term,  1829,  and  an  appeal  from  the  triennial  assess- 
ment, under  a  special  act  of  assembly,  passed  the  14th  of  April, 
1828.  The  present  president  judge  (Fox)  having  been  con- 
cerned in  that  case  as  counsel  for  Mr.  Ingham,  and  having  received 
his  commission  before  it  was  decided,  certified  it  to  the  Special 
Court  (KiNG,  President),  for  argument ;  and  the  Special  Court 
made  the  following  decree : 


1835.]  OF  PENNSYLVANIA.  75 

(Philadelphia  Library  Company  v.  Ingham.) 

"  In  the  Special  Court  of  Common  Pleas  of  Bucks  County,  Janu- 
ary Term, 1831. 
LIBRARY  COMPANY  )  Appeal    from    the    Triennial    Assessment. 

CASE.  j  January  1st,  A.  D.  1831. 

Hon.  Edward  King,  Esq.,  President  of  said  Court. 
Wm.  Watts,  Wm.  Long,  Esqs.,  Associates. 

In  the  matter  of  the  appeal  of  the  Loganian  Library  Company 
of  Philadelphia,  against  the  assessments  of  taxes  on  certain  ground 
rents  belonging  to  the  said  Company,  issuing  out  of  lands  in  the 
township  of  Solebury,  in  the  County  of  Bucks,  owned  by  Samuel 
D.  Ingham,  Richard  Randolph,  and  John  Bye  :  The  Court  are 
of  opinion  and  accordingly  decree,  that  the  equitable  and  just 
valuation  of  the  ground  rent  of  twenty-five  pounds  sterling,  issuing 
out  of  the  lands  granted  by  James  Logan  to  Jonathan  Ingham,  on 
the  1st  day  of  May,  1747,  is  eighteen  hundred  and  fifty  dollars  ; 
and  that  the  equitable  and  just  valuation  of  the  ground  rent  of 
ten  pounds  sterling,  issuing  out  of  the  lands  granted  on  the  26th 
day  of  May,  1747,  by  James  Logan  to  Jacob  Dean,  is  seven  hun- 
dred and  forty  dollars,  and  no  more  ;  and  accordingly  do  adjudge, 
order  and  decree  that  the  sum  to  be  levied  and  assessed  on  the 
said  ground  rent  of  twenty -five  pounds  sterling,  for  county  rates 
and  levies,  shall  be  three  dollars  and  seventy  cents  ;  and  that  the 
sum  to  be  levied  and  assessed  on  the  said  ground  rent  of  ten 
pounds  sterling  for  county  rates  and  levies,  shall  be  one  dollar 
and  fifty-eight  cents,  the  same  being  at  the  rate  of  twenty  cents 
of  tax  to  the  one  hundred  dollars  of  value  ;  and  the  Court  do 
further  order  *and  adjudge,  that  the  County  of  Bucks  r^pn 
shall  pay  the  costs  of  the  said  appeal." 

Prior  to  swearing  the  jury  in  the  present  cause,  the  following 
plea  to  the  jurisdiction  of  the  court  was  filed  : — 

"And  the  said  defendant,"  (Sands,  the  constable,)  "by  his  at- 
torney, further  says,  that  the  trial  of  the  suit  aforesaid,  is  not 
subject  to  the  jurisdiction  of  the  president  judge  of  the  district 
of  which  the  County  of  Bucks  is  a  part,  but  that  it  is  subject  to 
the  jurisdiction  of  a  special  court,  appointed,  and  to  be  held  by 
the  president  of  another  district ;  for  that  the  said  president 
judge  of  the  said  County  of  Bucks  has  been  concerned  as  counsel, 
"  touching  the  same  subject-matter"  in  a  former  suit  or  case,  to 
wit,  in  the  matter  of  the  petition  and  appeal  of  the  Library 
Company  of  Philadelphia,  to  September  term,  1829,  in  this 
court ;  which  said  suit  or  case  and  proceeding,  the  said  president 
judge  of  the  said  court  certified  to  a  special  court  for  argument 
and  decision  ;  and  the  said  defendant,  by  his  attorney,  and  on 
behalf  of  the  Library  Company  of  Philadelphia,  in  trust  for  the 
Loganian  Library,  respectfully  requests  that  the  suit  aforesaid 


76  SUPREME  COURT  [Dec.  Term, 

(Philadelphia  Library  Company  t>.  Ingham.) 

may  be  certified  to  the  Special  Court,  to  be  held  in  the  said 
county,  for  trial." 

The  court  overruled  the  above  plea,  in  reference  to  which,  the 
president  judge  delivered  the  following  opinion  : — 

"  The  ground  of  this  request  is,  that  the  president  judge  has 
been  concerned  as  counsel,  "  touching  the  same  subject-matter" 
in  a  former  suit,  to  wit,  in  the  matter  of  the  petition  and  appeal 
of  the  Library  Company  of  Philadelphia,  in  this  court,  to  Sep- 
tember term,  1829. 

"  The  act  of  assembly  provides,  that  whenever  the  presiding 
judge  has  been  concerned  as  counsel  for  either  of  the  parties  in 
any  suit  instituted'  in  the  Court  of  Common  Pleas,  touching  the 
»ame  subject-matter^  then  such  suit  shall  be  subject  to  the  juris- 
diction of  a  Special  Court.  The  counsel  for  the  Library  Com- 
pany supposes  that  if  the  subject-matter  be  the  same,  the  case 
is  subject  to  the  jurisdiction  of  the  Special  Court,  although  the 
parties  may  be  different,  and  has  drawn  his  plea  with  a  view  to 
such  a  case.  I  differ  with  him.  I  think  the  parties  and  subject- 
matter  must  be  the  same  ;  and  therefore  entertain  jurisdiction  of 
the  cause,  and  overrule  the  plea. 

"  I  have  heretofore  been  inclined  to  send  to  the  Special  Court 
all  cases,  wherein  either  party  supposed  I  had  been  in  any  wise 
connected,  either  as  to  party,  or  subject-matter,  or  question  ;  but 
I  am  now  disposed  to  confine  the  removal  strictly  to  cases  where 
F*771  ^  *8  *mluired  t°  De  done  by  the  act  of  assembly.  It  is 
J  now  nearly  five  years  since  I  was  appointed  president 
judge  of  this  district ;  and  a  considerable  part  of  the  business  cer- 
tified to  the  Special  Court  remains  undisposed  of,  and  probably 
some  of  it  will  yet  remain  long  undetermined.  The  removal  of  a 
case  to  that  court,  I  therefore  consider  as  an  injury  to  one  of  the 
parties,  which  I  have  no  right  to  inflict  unless  the  law  requires  me 
to  do  so." 

To  this  opinion,  exception  was  taken  by  the  counsel  of  the  Li- 
brary Company. 

In  the  course  of  the  trial,  the  counsel  of  the  plaintiff  below, 
called  as  a  witness,  Jonathan -Ely,  who  testified  as  follows — "I 
live  in  Solebury  township,  where  this  property  is  situated.  I 
have  been  the  assessor  of  that  township,  and  am  at  this  time. 
I  was  the  assessor  at  the  last  triennial  assessment  in  1831.  I  was 
the  assessor  in  1830.  Previous  to  the  last  triennial  assessment, 
it  was  assessed  separately,  a  portion  of  it  was  assessed  to  the 
tenants,  and  a  part  to  the  company  ;  in  1831,  it  was  assessed  to  the 
tenants,  the  whole  to  Mr.  Ingham,  and  Mr.  Randolph.  In  1828  to 
1831,  the  valuation  put  upon  that  part  belonging  to  the  Loganian 
Library,  was  assessed  at  eight  thousand  eight  hundred  and  sixty- 
two  dollars.  In  1831,  the  whole  was  assessed  to  Mr.  Ingham  and 


1835.]  OF  PENNSYLVANIA.  77 

(Philadelphia  Library  Company  v.  Ingham.) 

Mr.  Randolph,  and  valued  at  $34080,  on  the  396  A.,  120  P. 

In  1825,  it  was  valued  at  8730, 

In  1822,  it  was  valued  at  10611, 

In  1819,  it  was  valued  at  the  same, 

In  1816,  it  was  valued  at  11790, 

In  1815,  it  was  valued  at  4000." 

The  counsel  of  the  plaintiff  helow,  then  propounded  to  the'  wit- 
ness the  following  question :  "  Are  you  acquainted  with  the  Lo- 
ganian  interest  in  the  premises ;  and  what  value  would  you  put 
upon  it?"  The  question  was  objected  to  by  the  counsel  for  the 
Library  Company,  but  the  court  overruled  the  objection,  and 
exception  was  taken  to  their  opinion.  The  witness  then  pro- 
ceeded as  follows: — "It  would  be  a  very  difficult  matter  to  say 
what  it  is  worth,  but  in  assessing,  we  put  the  bona  fide  value 
that  it  would  sell  for.  I  should  suppose  it  would  bring  four 
thousand  dollars — the  valuation  in  1815.  I  have  reason  to  be- 
lieve it  would  sell  for  four  thousand  dollars,  if  it  was  put  up  at 
market.  I  did  not  assess  the  property  before  1831,  at  the  tri- 
ennial assessment.  There  has  been  a  barn  built  on  it  since  my 
recollection.  I  heard  Mr.  Ingham  say,  he  was  willing  to  give 
four  thousand  dollars  for  it — have  had  frequent  conversations  on 
the  subject — think  that  is  a  pretty  good  reason.  From  what  I 
know  of  the  property,  independent  of  that,  I  should  suppose  it  was 
*somewhere  about  the  valuation.  That  is  all  the  reason  I  r^o-i 
have  for  supposing  it  would  bring  four  thousand  dollars."  *- 

The  counsel  for  the  plaintiff  below,  then  called  Dr.  John  Wil- 
son, who  testified  as  follows : — "  It  is  a  subject  I  have  thought 
of,  being  agent  for  the  Library  Company  for  some  years,  and  I 
have  frequently  talked  with  the  members  of  that  company,  with 
respect  to  the  sale  of  their  interest  in  it.  I  have  never  fixed 
with  them  any  valuation,  although  I  have  advised  them  to  sell. 
I  have  been  acquainted  with  what  the  tenants  were  willing  to 
give  Richard  Randolph ;  he  informed  me  that  they  were  willing 
to  give  four  thousand  dollars,  including  Samuel  D.  Ingham,  and 
himself;  he,  Randolph,  holds  a  part  of  it.  I  should  have  advised 
the  Library  Company  to  accept  the  four  thousand  dollars.  It 
had  been  on  my  mind  to  advise  them  to  accept  it.  I  was  agent 
for  that  company  from  1817-18,  till  1826.  I  should  think  that  a 
fair  valuation,  as  near  as  my  judgment  would  establish  a  value. 
I  do  not  know  the  amount  of  the  rent;  the  property,  exclusive 
of  the  mills,  rented  for  six  hnndred  dollars,  Ingham's  part,  in 
1829-30.  I  have  heard  it  said  the  paper  mill  rented  for  eleven 
hundred  dollars  a  year.  Randolph's  property,  until  a  year  or 
two,  was  to  the  shares;  the  mill  rented  by  Randolph,  is  for  six 
hundred  dollars  a  year ;  the  land  is  worked  to  the  shares  ;  there 
was  a  large  barn  on  Ingham's  part,  and  a  grist  mill  and  oil  mill 


78  SUPREME  COURT  [D<w.  Term, 

(Philadelphia  Library  Company  c.  Ingham.) 

on  Randolph's  part.  During  many  years  that  I  was  agent  for 
the  company,  I  have  had  many  conversations  with  Randolph  on 
the  subject ;  caunot  recollect  the  time.  I  don't  know  that  he 
ever  made  an  offer  of  any  specific  sum,  though  he  had  frequent 
interviews  with  the  company  on  the  subject.  I  don't  recollect 
that  he  informed  me  he  offered  any  specific  sum  to  them.  He, 
Dr.  Park,  always  told  me  he  didn't  think  the  company  were  pre- 
pared, generally,  to  sell.  I  had  frequent  conversations  with  Sam- 
uel Coats,  the  former  treasurer  and  secretary  of  the  company." 

The  counsel  for  the  plaintiff  below,  then  gave  in  evidence  a 
receipt,  dated  August  1st,  1833,  from  Thomas  Sands  to  Samuel 
D.  Ingham,  for  eighty-three  dollars  eleven  cents,  and  on  account 
of  a  certain  ground  rent  for  the  year,  ending  March  1st,  1833, 
for  Samuel  D.  Ingham  and  Richard  Randolph ;  and  also  one  other 
receipt,  dated  December  9th,  1833,  for  sixty -nine  dollars  ninety- 
two  cents,  Thomas  Sands  to  Samuel  D.  Ingham,  in  full  for  county 
and  state  tax,  including  the  tax  on  the  Loganian  ground  rent ;  and 
also  one  other  receipt,  dated  August  1st,  1833,  Thomas  Sands  to 
Richard  Randolph,  for  two  dollars  fifty-four  cents,  balance  of 
county  tax  for  1832,  also  for  eighty-five  cents  in  full,  of  balance 
of  state  tax,  for  the  year  1832 ;  and  also  one  other  receipt,  dated 
August  1st,.  1832,  Thomas  Sands  to  Richard  Randolph,  for  two 
dollars  fifty-four  cents,  for  road  tax  for  the  year  1832. 
r*7Q1  *The  counsel  for  the  plaintiff  below,  also  gave  in  evi- 
J  dence  certain  duplicates,  showing  that  in  the  year  1833, 
the  state  tax  upon  the  land  and  ground  rent  included,  amounting 
to  sixteen  dollars  thirty-six  cents,  at  the  rate  of  one  mill  to  the 
dollar,  upon  the  land  occupied  by  Samuel  D.  Ingham,  exclusive 
of  the  tax  upon  the  land  occupied  by  Richard  Randolph ;  that  the 
land  and  ground  rent  were  valued  at  twelve  thousand  three  hun- 
dred and  sixty  dollars,  and  the  paper  mill  at  four  thousand  dollars, 
amounting  in  the  whole  to  sixteen  thousand  three  hundred  and 
sixty  dollars,  which,  at  the  rate  of  thirty  cents  to  every  hundred 
dollars  of  value,  made  the  county  tax  $49  08 

The  state  tax  at  one  mill  to  the  dollar,  was  16  36 

The  road  tax  for  that  year,  the  same  as  the  county  tax  49  08 


Making  upon  the  part  occupied  by  S.  D.  Ingham  $114  52 
And  also  that  the  eighty-four  acres,  occupied  by 
Richard  Randolph,  were  assessed  to  him  at  forty 
dollars  per  acre,  amounting  to  three  thousand 
three  hundred  and  sixty  dollars ;  and  that  the 
whole  of  the  taxes  upon  that  part  amounted  to  23  46 

Making  the  taxes  upon  the  Loganian  lands  $137  98 

occupied  by  Samuel  D.  Ingham,  and  Richard 
Randolph. 


1835.]  OF  PENNSYLVANIA.  79 

(Philadelphia  Library  Company  v.  Ingham.) 

The  counsel  for  the  plaintiff  below,  then  examined  Thomas 
Sands,  who  testified  as  follows : — "  The  road  tax  for  1832,  was 
paid  by  Mr.  Ingham ;  he  sent  the  tax  by  Joseph  Cooper.  I  gave 
him  a  receipt.  Cooper  was  the  supervisor.  The  road  tax  and 
county  tax  were  the  same  that  year;  last  season  they  were 
changed.  I  made  Ingham' s  distress  at  the  house  and  barn.  I 
distrained  some  hay,  I  forget  whether  any  thing  else,  in  the  east 
end  of  the  barn.  Didn't  make  any  distress  upon  the  part  occu- 
pied by  Richard  Randolph.  I  cannot  say  whether  the  money, 
eighty-three  dollars  eleven  cents,  was  paid  before  the  distress. 
The  warrant  was  issued  before  the  payment  was  made.  My 
impression  is,  that  the  rent  was  paid  at  the  time  I  went  to  the 
house  to  make  the  distress." 

After  the  evidence  for  the  plaintiff  was  closed,  the  counsel  for 
the  defendants  below,  offered  in  evidence,  the  petition  and  appeal 
of  the  Library  Company,  for  the  use,  &c.  in  the  Court  of  Com- 
mon Pleas  of  Bucks  county,  to  September  Term,  1829,  from  the 
triennial  assessment  of  taxes,  and  the  decree  of  the  Special  Court 
thereupon.  The  evidence  was  objected  to  by  the  counsel  for  the 
*plaintiff  below,  and  rejected  by  the  court ;  who  signed  a  I-*OQ-I 
bill  of  exceptions. 

The  evidence  in  the  cause  being  closed,  it  was  contended  on  the 
part  of  the  plaintiff,  that,  as  he  had  paid  eighty-three  dollars 
eleven  cents,  on  account  of  the  rent  charge,  he  had  a  right  to 
defalk,  and  retain  the  balance  of  twenty  eight  dollars,  for  the  pro- 
portion of  taxes  paid  by  him  to  the  collector,  which  ought  to  be 
borne  by  the  rent  charge  ;  alleging  that  the  portion  accruing 
upon  the  rent  charge,  amounted  to  twenty -eight  dollars.  He 
also  contended  that  the  Library  Company  were  bound  to  allow 
and  pay  the  taxes  accruing  not  only  upon  the  rent  charge,  but 
also  on  the  land  on  which  it  was  charged,  and  that  he  was  entitled 
to  defalk  and  retain  out  of  the  said  rent,  the  whole  amount  of 
taxes,  as  well  upon  the  land  as  upon  the  rent  charge.  These 
propositions  were  denied  by  the  counsel  for  the  Library  Com- 
pany ;  who  submitted  certain  propositions  to  the  court,  on  which 
he  requested  them  to  instruct  the  jury. 

The  president  Judge  delivered  to  the  jury  the  following 
charge : 

"The  Library  Company  claim  from  Samuel  D.  Ingham,  one 
hundred  and  eleven  dollars  eleven  cents,  or  twenty-five  pounds 
sterling,  as  a  ground  rent  due  from  him  to  them.  It  is  proved 
and  admitted,  that  Mr.  Ingham  has  paid  to  the  Library  Com- 
pany, on  account  of  this  claim,  the  sum  of  eighty-three  dollars 
eleven  cents ;  and  he  further  contends  that  he  has  paid  to  the 
proper  collector  of  taxes,  the  taxes  upon  the  land,  and  upon  the 
ground  rent,  the  amount  and  more  of  the  balance  claimed,  and 

VOL.  i. — 6. 


80  SUPREME  COURT  [Dec.  Term, 

(Philadelphia  Library  Company  v.  Inghara.) 

that  he  is  entitled  to  defalk  out  of  the  rent  claimed  of  him.  He 
claims  that  under  the  sixth  section  of  the  act  of  the  3d  April, 
1806,  directing  the  mode  of  selling  unseated  lands  for  taxes,  and 
the  eighth  section  of  the  road  law  of  the  6th  April,  1802,  he  is 
entitled  to  pay  all  taxes  which  may  be  assessed  on  the  land,  and 
ground  rent,  and  defalk  the  amount  from  the  rent. 

The  Library  Company  deny  that  the  acts  of  assembly  so  relied 
upon,  apply  to  cases  of  ground  rent.  I  can  see  no  reason  why 
their  provisions  should  not  be  applied  to  cases  of  ground  rent, 
as  well  as  to  any  other  rent.  The  terms  of  the  law  are  general, 
and  the  reasons  for  such  provisions  will  apply  equally  to  all 
cases. 

The  next  question  is,  who  is  properly  chargeable  with  the 
taxes  ?  The  Library  Company  admit  that  they  were  chargeable 
with  the  taxes  on  the  ground  rent,  but  aver  that  Mr.  Ingham 
must  pay  the  taxes  on  the  land.  I  believe  that  in  the  City  and 
County  of  Philadelphia,  the  practice  always  has  been  to  have  a 
clause  in  the  ground  rent  deed,  providing  for  the  payment  by  the 
tenant,  of  all  taxes  which  may  be  assessed,  as  well  upon  the  land, 
r^o-i  -i  as  upon  the  *rent.  I  believe  that  the  opinion  in  Pennsyl- 
-J  vania  at  the  bar,  is  uniform,  that  the  landlord  is  bound  to 
pay  the  taxes,  unless  there  be  some  agreement  to  the  contrary, 
between  him  and  his  tenant.  I  am  unable  to  distinguish  this  case 
in  this  particular,  from  any  other  between  landlord  and  tenant, 
and  I  therefore  say,  that  as  there  is  no  provision  in  the  deed,  nor 
any  other  evidence  of  a  contract,  by  which  the  tenant  agreed  to 
pay  the'  taxes,  they  must  be  paid  by  the  landlord. 

The  tenant,  therefore,  has  a  right  to  defalk,  as  well  the  taxes 
upon  the  land,  as  upon  the  ground  rent,  out  of  the  rent. 

The  only  remaining  question,  is  the  value  of  the  ground  rent. 
That  must  be  estimated  by  what  it  will  fairly  sell  for  in  the 
market,  for  ready  money,  and  is  a  question  of  fact  for  you  to 
decide.  If  you  believe  the  witnesses,  it  would  bring  in  the 
market  four  thousand  dollars." 

The  following  is  a  statement  of  the  points  submitted  to  the 
court,  and  the  answers  of  the  president  to  them,  viz : 

1.  That  the  Library  Company  of  Philadelphia,  in  trust,  for 
the  use  of  the  Loganian  Library,  were  entitled  to  receive  from 
the  plaintiff  on  the  first  of  March,  1833,  the  amount  of  the  rent 
charge  for  one  year,  ending  at  that  time,  charged  upon  the  plain- 
tiff's land,  by  virtue  of  the  deed  from  James  Logan  to  Jonathan 
Ingham,  and  by  virtue  of  the  other  assurances  given  in  evidence 
in  the  cause,  to  wit,  the  sum  of  twenty-five  pounds  sterling. 

Answer.  They  were  so  entitled,  unless  the  plaintiff  had  a 
right  to  defalk  the  taxes  on  the  land,  or  ground  rent. 

2.  That  the  act  of  assembly  authorizing  a  tenant  to  defalk 


1835.]  OF  PENNSYLVANIA.  81 

(Philadelphia  Library  Company  v.  Ingham.) 

from  the  amount  of  the  rent,  the  taxes  which  he  has  paid  upon 
the  land,  does  not  apply  to  a  case  of  this  description. 
Answer.  The  act  of  assembly  does  apply. 

3.  That  the  assessment  of  taxes  upon  the  ground  rent  men- 
tioned is  to  be  at  its  present  bona  fide  value,  to  wit,  at  the  value 
of  one  thousand  eight  hundred  and  fifty  dollars,  and  no  more. 

Answer.  It  is  to  be  at  its  bona  fide  value  ;  but  what  that  value 
is,  is  a  question  of  fact  for  the  jury. 

4.  That  if  there  is  any  defalcation  to  be  made  by  the  plaintiff 
from  the  ground  rent,  for  taxes  paid  by  him,  it  is  to  be  made  and 
apportioned  according  to  the  valuation  above  mentioned,  and  not 
higher  ;  and  it  is  to  be  only  for  the  value  of  the  ground  rent,  and 
not  for  the  taxes  assessed  upon  the  land. 

Answer.  That  is  not  true.  The  value  is  a  question  of  fact, 
and  *  the  tenant  is  entitled  to  defalk  the  taxes  paid  by  him,  r^oo-i 
as  well  upon  the  land  as  upon  the  ground  rent. 

Under  the  instructions  thus  given,  the  jury  returned  a  verdict 
in  these  words,  viz. : 

"The  jurors  in  the  above  case  do  find,  that  under  the  evidence 
produced  in  the  cause,  the  present  value  of  the  rent  charge  of 
twenty-five  pounds  sterling,  annually  accruing  upon  the  land  of 
the  plaintiff  and  his  assigns,  to  wit,  the  said  Samuel  D.  Ingham 
and  Richard  Randolph,  to  the  defendants,  is  four  thousand  dol- 
lars ;  that  this  sum  was  the  value  of  the  same  rent  charge  in 
1832  ;  that  the  said  plaintiff  paid  to  the  defendants  in  part  of  the 
said  twenty -five  younds  sterling,  (or  one  hundred  and  eleven  dol- 
lars eleven  cents,)  the  sum  of  eighty-three  dollars  eleven  cents, 
for  the  year  ending  1st  March,  1833,  leaving  a  balance  of  twenty- 
eight  dollars :  that  the  said  amount  was  paid  in  taxes  by  the 
plaintiff  in  the  following  manner,  at  the  rate  of  thirty  cents  to  the 
hundred  dollars,  which  was  the  standard  of  assessment  for  that 
year,  and  was 

County  tax  $12  00, 

Road  tax  12  00, 

State  tax  4  00, 


$28  00. 

That  the  plaintiff  is  entitled  to  a  deduction  of  the  above  amount 
of  twenty-eight  dollars,  on  account  of  taxes  paid  as  aforesaid. 
They  therefore  find  for  the  plaintiff." 

In  this  court,  the  following  specification  of  errors  were  filed : 

1.  The  court  below  erred  in  overruling  the  plea  filed  on  behalf 
of  the  defendants  below,  to- the  jurisdiction  of  the  court. 

2.  The  court  below  erred  in  refusing  to  receive  in  evidence  the 
proceedings  and  decree  of  the  Special  Court,  by  which  the  value 


82  SUPREME  COURT  [Dec.  Term, 

(Philadelphia  Library  Company  c.  Ingham. ) 

of  the  rent  charge  was  fixed  at  one  thousand  eight  hundred  and 
fifty  dollars,  on  the  appeal  by  the  defendants  below  from  the  tri- 
ennial assessment. 

3.  The  court  below  erred  in  permitting  the  witnesses  of  the 
plaintiff  below  to  answer  the  following  question,  propounded  by 
his  counsel :  "  are  you  acquainted  with  the  Loganian  interest  in 
the  premises,  and  what  value  would  you  put  upon  it?" 

4.  The  court  below  erred  in  their  charge  to  the  jury. 

5.  The  court  below  erred  in  their  answers  to  all  the  proposi- 
tions submitted  to  them  by  the  counsel  of  the  plaintiffs  in  error, 
for  their  opinion. 

*  Mr-  W.  Rawh,  Jr.,  for  the  plaintiffs  in  error: 
1.  The  plea  to  the  jurisdiction  of  the  president  judge 
ought  not  to  have  been  overruled.'  The  intention  of  the  act  of 
23d  of  March,  1813,  was  to  prevent  the  opinions  and  prejudices 
of  counsel  interferring  with  the  administration  of  justice.  It  is 
not  necessary  that  the  parties  should  be  the  same  on  the  record. 
If  the  person  for  whom  the  judge  was  counsel,  was  a  party  in  in- 
terest, it  is  sufficient.  In  this  case,  there  is  no  doubt  that  the  de- 
fendant in  error  was  the  real  party  in  interest,  and  that  "  the 
subject  matter"  was  the  same.  The  act- of  the  14th  April,  1834, 
section  37,  chapter  4,  is  decisive  upon  the  point. 

2.  The  judge  erred  in  supposing  that  any  taxes  were  due  from 
the  Library  Company.     By  the  act  of  1799,  relating  to  "  County 
rates  and  levies,"  ground  rents  are  treated  as  a  species  of  prop- 
erty, distinct  from  the  land  out  of  which  they  issue  ;  and  so  they 
have  always  been  considered.     By  that  act  they  were  first  made 
taxable  ;  and  the  obvious  intention  was  to  create  a  new  source  of 
revenue  ;  not  to  divide  the  burden  between  the  owner  of  the 
ground  rent  and  the  owner  of  the  land.    No  tax  can  be  demanded, 
unless  all  the  steps  mentioned  in  the  act  of  1799  have  been  pre- 
viously taken  ;  and  in  this  case  none  of  those  requisites  appear  to 
have  been  attended  to  in  respect  to  the  ground  rent.     The  valua- 
tion  by   the   assessors   is  material.     Jiespublica  v.   D eaves  (3 
Yeates,  465.)     If  the  result  of  this  case  should   deprive  the 
county  of  the  tax  on  these  ground  rents,  for  the  time  being,  we 
are  not  to  blame,  having  always  been  ready  to  pay  the  tax  prop- 
erly assessed  on  the  ground  rent. 

3.  If  the  ground  rent  had  been  duly  assessed,  the  defendants 
in  error  had  no  right  to  deduct  the  amount  of  the  tax  from  the  ar- 
rears of  rent.    His  claim  to  do  so  rests  upon  two  acts  of  assembly, 
which  relate  to  matter  of  a  different  description,  (Acts  of  6th 
April,  1802,  s.  8,  and  3d  April,  1804,"s.  6.)     Both  of  these  acts 
refer  to  tenants  for  years,  and  have  no  application  to  a  rent,  pay- 
able out  of  the  fee,  like  the  present. 


1835.]  OF  PENNSYLVANIA.  83 

(Philadelphia  Library  Company  t.  Ingham.) 

4.  The  standard  by  which  the  value  of  the  ground  rent  was 
estimated,  was  uncertain  and  inequitable.     That  the  opinions  of 
witnesses  are  no  evidence,  except  in  certain  cases  of  science  and 
trade,  is  well  settled.      1  Phillips  Evid.  226.     There  are  two 
standards,  either  of  which  might  have  been  taken. — 1.  The  value 
of  money,  or  2d.  That  adopted  by  the  Special  Court.     Whatever 
may  be  the  value  of  the  increased  ground  rent  in  1861,  it  will  be 
then  properly  assessed,  and  the  company,  or  the  Owner  of  it,  will 
be  bound  to  pay  a  tax  in  proportion  to  that  value.     But  it  would 
be  obviously  unjust  to  take  that  future  value  as  the  basis  of  pres- 
ent assessment.     The  decree  of  the  Special  Court  was  an  express 
adjudication  upon  the  same  subject  matter,  and  ought  to  have 
been  followed. 

5.  The  doctrine  that  the  owner  of  a  ground  rent  is  bound  to 
pay  *the  taxes  upon  the  land,  out  of  which  the  rent  issues,   r^o^-i 
is  clearly  untenable.     A  ground  rent  is  a  rent  reserved   L 
upon  a  grant  in  fee.     It  differs  materially  from  a  rent  reserved 
upon  a  lease  for  years,  which  is  always  for  a  less  term  than  the 
lessor  has  in  the  premises.     3  Cruise  Dig.  Tit.  32,  s.  1.     The 
grantor  has  an  estate  in  fee  upon  a  condition  subsequent.     Litt. 
Sec.  325  ;  Co.  Litt.  201.     The  rent  has  all  the  qualities  of  real 
estate.     Hurst  v.  Lithgew,  (2  Yeates,  24  ;)   Wilder  v.  Foster, 
(2  Penn.  Rep.  26.)     If  this  doctrine  were  established,  the  con- 
sequences would  be  ruinous  to  the  owners  of  this  species  of  prop- 
erty.    In  fact,  the  point  has  been  decided  by  this  court,  (JFran- 
ciscus  v.  Reigart,  Harrisburg,  1835,  MS.~)* 

Mr.  W.  M.  Meredith,  for  the  defendant  in  error.  This  court 
will  look  to  the  real  points  in  dispute,  and  not  reverse  for  inci- 
dental expressions  of  the  judge  below. 

1.  A  judge  is  not  to  be  excluded  from  sitting,  because  he  has 
fixed  views  upon  any  principle  of  law.     The  question  is,  whether 
he  had  been  concerned  for  one  of  the  parties.     Now,  Mr.  Ingham 
was  not  a  party  to  the  appeal.     The  parties  really  and  nominally 
were  the  County  Commissioners  and  the  Library  Company..     Be- 
sides, this  was  a  question  addressed  to  the  discretion  of  the  judge, 
and  not  examinable  in  a  Court  of  Error.     Ellmaker  v,  Buckley, 
(16  S.  &.  R.  72.) 

2,  3.  A  ground  rent  in  Pennsylvania,  means  a  rent  of  inheri- 
tance.    In  this  case,  the  rent  was  reserved  for  years,  Chough  the  - 
land  was  conveyed  in  fee.     It  was  therefore  a  chattel  interest  for 
the  first  hundred  years,  though  the  company  claim  an  interest  in 
the  land  beyond  the  present  rent.     The  act  of  1799,  does  not  say 
that  the  rent  must  be  assessed  separately.     In  the  act  of  1724, 

*4  Watts,  98. 


84  SUPREME  COURT        .      [Dec.  Term, 

(Philadelphia  Library  Company  v.  Ingham.) 

"lands  and  tenements"  were  spoken  of  generally,  as  subjects  of 
taxation.  (Hall  &  Sellers'  Laws,  132.)  In  England,  the  original 
subsidies  were  on  the  rental.  (1  Com.  Dig.  tit.  Sewers,  F.  5  & 
E.  2.)  The  visible  owner  of  property  must  be  assessed.  Shaeffer 
v.  AI'Kabe,  (2  Watts,  422.)  Here  the  tax  was  laid  upon  the 
whole — rent  and  land — and  Mr.  Ingham,  having  paid  more  than 
his  proportion,  ought  to  be  allowed  to  deduct  the  excess.  Such 
is  the  rule  in  England,  in  the  case  of  the  land  tax.  (Platt  on 
Covenants,  211  ;  Comyn  on  Land.  &  Ten.  187.)  The  acts  of 
assembly  expressly  authorize  a  tenant  to  deduct  the  tax  from  his 
rent.  (Act  of  1799,  s.  25,  and  Act  of  1804.)  In  4  Term  Rep. 
511,  it  was  held  that  to  an  avowry  for  rent,  the  tenant  might  plead 
payment  of  a  ground  rent  to  the  original  landlord. 

4.  The  real  question  here  is,  what  is  the  true  standard  of  the 
value  of  the  ground  rent?    The  judge  of  the  Common  Pleas  said, 
that  the  jury  were  to  consider  what  it  would  fairly  sell  for  in  the 
market  for  ready  money.     Now  this  is  almost  literally  according 
r+or-i   to  the  *act  of  1799,  (s.  8.)     There  cannot  be  two  stand- 

J  ards  of  value,  each  absolutely  certain,  as  was  asserted  on 
the  other  side.  The  value  of  money  varies  with  the  varying 
situation  of  the  country  and  other  circumstances.  There  is  no 
instance  of  the  assessment  of  ground  rents  at  six  per  cent.  The 
decree  of  1829,  cannot  control  subsequent  assessments.  The  law 
requires  assessments  to  be  made  triennially.  If  the  par  value  of 
the  ground  rent  is  the  true  standard,  why  did  Judge  King  go  be- 
yond the  sixteen  years  and  two-thirds  purchase  ?  The  true  meas- 
ure is  the  price  the  company  would  be  willing  now  to  take,  looking 
at  the  certain  future  increase. 

5.  This  is  not  the  case  of  an  ordinery  ground  rent,  if  it  can  be 
called  by  that  name.     The  Library  Company  have  an  interest  in 
the  land  beyond  the  rent.     It  is  more  like  a  rent  for  a  long  term 
of  years.     If  rent  be  reserved  to  a  man  and  his  heirs  upon  a  lease 
for  years,  the  executor  cannot  take.     Gilbert  on  Rents,  66.    The 
case  of  Darragh  v.  Wihon,  (Cro.  Eliz.  645,)  shows  that  on  the 
death  of  Mr.  Logan  this  rent  went  to  his  Executors. 

This  was  a  rent-seek,  not  a  rent-charge.  Gilbert  on  Rents,  14, 
15  ;  Co.  Litt.  143,  s.  216,  217  ;  3  Cruise  Dig.  188.  The  Stat. 
4  Geo.  2,  c.  38,  s.  5,  which  extends  the  remedy  by  distress  to 
rente-seek,  is  not  in  force  in  this  state.  [KENNEDY,  J.  That  is 
not  so  certain.  We  had  a  case  recently  at  Harrisburg  in  which  it 
was  supposed  to  be  in  force.] 

THE  COURT  declined  hearing  Mr.  Sergeant,  (with  whom  was 
Mr.  Chauncey,}  in  reply. 

The  opinion  of  the  court  was  delivered  by 


1835.]  OF  PENNSYLVANIA.  85 

(Philadelphia  Library  Company  «.  Ingham.) 

GIBSON,  C.  J. — The  only  principle  that  could  produce  an  effect 
on  the  event,  has  already  been  determined  in  Franciscus  v.  Rei- 
gart ;  where  it  was  held  that  the  conditional  owner  of  the  fee 
cannot  defalcate  taxes  assessed  on  the  land.  What  is  there  in 
this  case  besides  ?  It  is  not  pretended  that  there  was  a  separate 
assessment  on  the  ground  rent;  and  if  there  had  been,  what 
concern  would  the  occupant  have  had  with  it?  The  act  of  the 
3d  of  April,  1804,  subjects  the  tenant  to  taxes  assessed  on  the 
land,  and  empowers  him  to  recover  it  from  his  landlord  by  action 
or  defalcation ;  but  the  tax  on  ground  rent  is  chargeable  on  a 
distinct  species  of  property.  Besides,  though  the  owner  of  it  is 
usually  called  the  ground  landlord,  the  expression  is  evidently  an 
inaccurate  one.  Subinfeudation  no  more  exists  here  than  it  does 
in  England,  since  the  statute  of  quia  emptores;  and  there  is 
nothing  like  tenure,  where  the  rent  is  not  incident  to  the  rever- 
sion. Now,  such  a  rent  as  the  present,  is  charged  on  the  land, 
the  instant  the  ground  landlord  parts  with  the  fee,  leaving  in  him 
but  a  condition  of  re-entry ;  and  even  the  reservation  of  that 
may  be  omitted.  And  it  may,  by  force  of  *the  deed,  be  r^oc-j 
charged  on  land  of  which  the  ground  landlord  never  was  "- 
the  owner.  The  clause  in  the  act  above  quoted,  has  respect  to 
taxes,  for  which  the  tenant  is  liable  by  his  position  as  the  occu- 
pant, but  for  which  he  is  not  liable  by  any  agreement  with  his 
landlord.  His  case  would  call  for  a  liberal  construction,  if  he 
were  exposed  to  payment  of  the  ground  rent  taxes ;  but  by  no 
statute  whatever  is  his  person  or  chattels  chargeable  with  any 
burthen,  that  is  not  assessed  specifically  on  the  land.  The  sta- 
tute has  expressly  subjected  ground  rents  to  taxation,  eo  nomine; 
but  it  has  provided  no  remedy  to  enforce  payment  by  distress  on 
the  land  from  which  it  issues  ;  and  the  tax  is  consequently  to  be 
collected  as  a  tax  on  land  was  previously  to  be  collected — by  re- 
course to  the  person  or  chattels  of  the  owner.  It  is  undoubtedly 
true,  that  he,  like  the  owner  of  land  when  the  tenant  was  irre- 
sponsible, may  be  beyond  the  reach  of  the  collector.  Taking  for 
granted,  however,  that  this  species  of  property,  unlike  a  chattel 
interest  which  attends  the  person  of  the  owner,  is  to  be  taxed, 
but  in  the  country  where  the  land  lies,  the  right  of  taxing  it  not 
being  determinable  by  the  domicil,  yet,  as  the  statute  which 
makes  the  tenant  liable  for  taxes  assessed  on  the  land,  has  not 
made  him  liable  for  taxes  on  quit  rents  issuing  out  of  the  land, 
we  cannot  supply  what  we  might  suppose  to  be  the  effect  of  an 
.oversight.  Nor  do  we  conceive  that  the  defect,  if  there  be  one, 
is  of  great  magnitude,  as  it  is  the  practice  in  the  country  to 
assess  a  full  tax  on  the  land,  without  regard  to  incumbrances,  and 
to  overlook  the  quit  rents  altogether;  in  consequence  of  which, 
an  inconvenience  from  want  of  means  within,  in  the  county,  haa 


86  SUPREME  COURT  [Dec.  Term, 

(Hogeland's  Appeal.) 

not  been  so  striking  as  to  challenge  legislative  inquiry.  But  if 
that  were  otherwise,  to  provide  such  means  would  exceed  our 
power. 

The  proposition  also  asserted  here,  that  separate  taxes,  on 
separate  subjects  of  taxation,  separately  owned  by  distinct  per- 
sons, may  be  indiscriminately  assessed  on  the  same  subject  matter, 
leaving  the  owners  to  settle  their  respective  proportions  of  what 
would  thus  be  made  a  common  burthen,  is  still  more  extravagant. 
To  admit  that  a  tax  on  the  quit  rent  may  be  assessed  conjointly 
with  that  on  the  land,  would  deprive  the  rent-holder  of  his  sepa- 
rate right  of  appeal,  which,  by  a  particular  legislative  provision, 
lies  in  this  case  to  the  Common  Pleas.  There  was  in  fact  and  in 
law,  therefore,  no  assessment  on  the  quit  rent,  and  no  duty  owing 
for  it;  but  if  that  were  otherwise,  it  would  not  be  material  to 
inquire  whether  there  was  error  in  the  method  adopted  to  ascer- 
tain the  measure  of  its  relative  proportion ;  for,  whether  it  were 
assessed  jointly  or  separately,  the  occupant  could  not,  by  volun- 
tary payment,  make  himself  a  creditor  of  the  person  properly 
chargeable  with  it. 

But  the  exception  to  the  jurisdiction  is  not  sustained.  We 
have  already  intimated  that  an  objection  to  competency,  under 
the  act  for  the  establishment  of  Special  Courts,  must  be  addressed 
l"*87~l  ^°  tne  *discretion  of  the  judge  himself;  and  this  is  con- 
'  formably  to  the  principle  of  the  common  law,  which  ex- 
empts a  judge  from  challenge.  Nor  can  there  be  danger  in 
leaving  the  matter  to  him.  A  sense  of  duty  in  keeping  his  ad- 
ministration not  only  pure  but  unsuspected ;  and  the  reprobation 
that  would  ensue  an  evident  desire  to  favor  a  party  by  retaining 
the  cause,  must  always  incline  him  to  surrender  it  where  he  may 
do  so  by  the  most  comprehensive  construction.  Into  the  supposed 
relations  of  the  parties,  therefore,  we  are  forbidden  to  inquire ; 
and  we  are  bound  to  suppose  that  the  legal  discretion  of  the 
judge,  in  holding  himself  exempt  from  the  bias  incident  to  the 
imputed  causes  of  it,  has  been  soundly  exercised. 

Judgment  reversed  and  a  venire  de  novo  awarded. 

Cited  by  Counsel,  5  Wharton,  315  ;  2  Barr,  169. 
Cited  by  the  Court,  9  Casey  447. 
See  also  1  Barr,  351. 


[PHILADELPHIA,  JANUARY  14,  1836.] 

HOGELAND'S   APPEAL. 

A  testator  directed  his  executor  to  convert  his  whole  estate  into  money,  and 
declared  that  he  forgave  certain  debts  due  to  him  by  his  sons  A.  and  B., 


1835.]  OF  PENNSYLVANIA.  87 

(Hogeland's  Appeal.) 

and  his  sons-in-law,  C.  and  D.  He  ordered  the  residue  to  be  equally 
divided  into  six  parts  ;  and  bequeathed  one-sixth  to  a  trustee,  with  direc- 
tions to  invest  the  same  and  pay  the  interest  to  E.  (one  of  his  daughters, 
the  wife  of  F.)  during  her  life,  and  the  principal  at  her  death  to  her  chil- 
dren :  He  then  added,  "It  is  further  my  will,  that  whatever  debts  may 
be  due  to  me  and  owing  from  any  of  my  sons  or  sons-in-laws  (except 
those  herein  forgiven,)  I  order  to  be  deducted  from  the  share  of  such  son 
or  son-in-law,  whether  given  direct  or  in  trust ;  and  the  neat  proceeds 
only  after  such  deduction  be  appropriated  to  the  use  of  such  branch  of 
my  family."  At  the  date  of  the  will,  F.,  the  son-in-law,  was  indebted 
by  bond  and  mortgage  to  the  testator ;  after  whose  death,  the  land  of  F. 
bound  by  the  mortgage,  was  sold  by  the  sheriff,  upon  an  execution  at  the 
suit  of  a  judgment  creditor  :  Held  that  the  mortgage  given  by  F.  to  the 
testator,  was  to  be  deducted  from  his  wife's  share ;  and  consequently 
was  not  a  lien  upon  the  land. 

APPEAL  by  Derrick  Hogeland  from  a  decree  of  the  Court  of 
Common  Pleas  of  the  county  of  Montgomery,  in  the  matter  of 
the  distribution  of  the  money  arising  from  the  sale  of  certain 
real  estate,  by  virtue  of  a  writ  of  venditioni  exponas  issued  in 
a  suit  of  James  Comly,  administrator,  &c.,  of  Deborah  Ayres, 
deceased,  against  William  Ayres,  devisee  of  Samuel  Ayres, 
deceased. 

George  Shelmire,  by  his  will  dated  the  15th  day  of  January, 
1828,  after  bequeathing  to  his  wife  certain  articles  of  personal 
property,  and  directing  that  she  should  have  the  use  of  a  house 
and  lot  of  ground  during  her  life,  did  "  give  and  forgive  "  to  his 
sons  William,  Jacob  and  George,  and  his  sons-in-law,  John  Ste- 
phens, and  Joel  K.  Mann,  who  had  intermarried  with  his 
daughters  Ann  and  *  Sarah,  certain  bonds  and  mortgages  r*oo-i 
executed  by  them  and  held  by  him,  as  therein  mentioned.  ^ 
He  then  provided  as  follows : 

"I  order  my  executors  hereinafter  named,  to  sell  at  public 
sale,  all  the  rest  of  my  personal  estate,  not  herein  given  to  my 
said  wife  Rachel,  and  the  messuage  and  lot  which  I  purchased  of 
the  administrators  of  Isaac  Davis,  as  soon  as  convenient  after 
my  decease.  Out  of  the  neat  proceeds  of  said  sales,  and  my  out- 
standing money,  I  order  my  executors  to  place  out  at  interest  on 
land  security,  or  otherwise  render  safe  and  productive,  7000  dol- 
lars ;  the  interest  of  which  I  order  to  be  paid  to  my  said  wife, 
Rachel,  annually  during  her  natural  life,  on  the  anniversary  of  my 
decease. 

"  The  residue,  if  any  (after  discharging  just  debts,  funeral  ex- 
penses, and  costs  of  administration,)  and  all  my  other  moneys  not 
embraced  in  the  above  sum  of  7000  dollars,  I  order  to  be  divided 
into  six  equal  parts  ;  one  of  which  six  equal  parts,  I  give  to  my 
son  William,  or  to  his  legal  representatives — one  other  sixth  part 
I  give  to  my  son  Jacob,  or  to  his  legal  representatives — one  other 
of  which  sixth  parts  I  give  to  my  son  George,  or  to  his  legal  rep- 


88  SUPREME  COURT  [Dec.  Term, 

(Homeland's  Appeal.) 

resentatives — one  other  of  the  sixth  parts  I  give  to  my  daughter 
Ann,  or  to  the  issue  of  her  body — one  other  sixth  part  I  give  to 
my  daughter  Sarah,  or  the  heirs  of  her  body — the  other  sixth 
part  I  give  to  my  friend  Israel  Hallowell,  of  Abington  township,  in 
the  said  county  of  Montgomery,  in  trust  that  he  put  the  said  sixth 
part  to  interest  on  land  security,  or  otherwise  render  it  safe  and 
productive,  and  pay  the  interest  thence  arising,  to  my  daughter 
Mary,  during  her  natural  life,  annually,  and  at  her  decease  to  pay 
the  principal  sum  to  all  her  children  in  equal  portions.  The  chil- 
dren of  deceased  parents,  if  any,  to  take  the  share  which  would 
have  been  due  the  parent'if  living." 

"It  is  further  my  will  that  whatever  debts  may  be  due  to  me 
and  owing  from  any  of  my  sons  or  sons-in-law,  (except  those 
herein  forgiven,^)  I  order  to  be  deducted  from  the  share  of  such 
son  or  son-in-law,  whether  given  direct  or  in  trust ;  and  the  neat 
proceeds  only  after  such  deduction  be  appropriated  to  the  use  of 
such  branch  of  my  family. 

"  And  at  the  decease  of  my  said  wife  Rachel,  I  order  my  exe- 
cutors to  sell  at  public  sale,  the  said  timber  lot  adjoining  Elias 
Yerkes,  for  the  best  price  which  .can  be  had,  which  price,  together 
with  the  7000  dollars  set  apart  for  the  use  of  my  said  wife 
Rachel,  after  discharging  the  further  costs  of  administration,  I 
order  to  be  divided  into  six  equal  parts."  [Five  of  which  six 
parts  he  gave  to  his  sons  William,  Jacob,  and  George,  and  his 
daughters  Ann  and  Sarah,  the  other  sixth  part  he  bequeathed  as 
follows  :]  "  The  other  sixth  part  I  give  to  my  said  friend  Israel 
Hallowell,  in  trust  to  be  disposed  of  for  the  use  of  my  said 
daughter  Mary,  in  all  respects  as  the  gift  herein  given  to  him  for 
r*Qq-i  that  purpose,  and  in  both  cases  *  the  interest  to  be  for  the 
J  separate  use  of  my  said  daughter  Mary,  and  at  her  de- 
cease, the  principal  for  her  lawful  issue  as  in  the  case  aforesaid." 

The  testator  then  appointed  his  son  George,  and  Joseph  Wood, 
trustees  to  receive  the  interest  bequeathed  to  his  wife,  and  dis- 
pose the  same  for  her  use  ;  and  lastly,  appointed  his  sons  William, 
Jacob,  and  George,  and  his  son-in-law  William  Ayres,  John 
Stephens,  and  Joel  K.  Mann,  executors  of  his  will. 

George  Shelmire,  the  testator,  died  on  the  8th  of  February, 
1828,  leaving  a  considerable  estate.  Among  the  debts  due  to 
the  testator,  was  a  bond  dated  the  2d  of  April,  1814,  for  2000 
dollars,  executed  to  him  by  his  son-in-law,  William  Ayres,  who 
had  married  his  daughter  Mary,  one  of  the  legatees  named  in  the 
said  will.  To  secure  the  payment  of  this  bond,  a  mortgage  was 
given  by  Ayres  of  the  same  date,  upon  a  tract  of  land  in  Montr 
gomery  county.  A  scire  facias  had  issued  upon  this  mortgage, 
at  the  suit  of  Shelmire,  in  March,  1826,  and  judgment  obtained 
for  2300  dollars,  upon  which  a  levari  facias  issued  to  August 


1835.]  OF  PENNSYLVANIA.  89 

(Hogeland's  Appeal.) 

term  of  that  year,  which  was  stayed  by  the  plaintiff  Shelmire ; 
and  no  further  proceedings  were  taken  to  collect  the  debt,  during 
the  life  time  of  Shelmire.  On  the  30th  of  December,  1829,  judg- 
ment was  obtained  by  James  Comly,  administrator,  &c.,  of  De- 
borah Ayres,  against  William  Ayres,  upon  which  a  venditioni 
ezponas  issued  to  April  term,  1831  ;  and  the  tract  of  land  mort- 
gaged to  Shelmire  was  sold  by  the  sheriff.  The  money  arising 
from  the  sale  having  been  brought  into  court,  auditors  were 
appointed  to  ascertain  the  facts  and  make  distribution  thereof; 
who  reported  that  the  mortgage  was  not  a  subsisting  lien  upon 
the  property,  having  been  deducted  from  the  legacy  bequeathed 
to  the  wife  of  William  Ayres  by  her  father ;  consequently,  that 
Derrick  Hogeland,  the  next  judgment  creditor,  was  entitled  to 
the  fund.  Exceptions  were  filed  to  this  report ;  and  after  argu- 
ment, the  court  of  Common  Pleas  set  aside  the  report,  and  ordered 
the  money  to  be  paid  to  the  executors  of  George  Shelmire,  the 
mortgagee. 

Derrick  Hogeland  appealed  from  the  decree  of  the  Common 
Pleas  to  this  court. 

Mr.  Sterigere,  for  the  appellant,  cited  1  Roper  on  Legacies, 
226 ;  Gordon  on  Decedents,  50,  206  ;  2  Black.  Com.  279  ;  3 
Burr.  Rep.  1541,  1581,  1662 ;  2  Dall.  244 ;  2  Roper,  62 ;  5 
Bac.  Abr.  684 ;  1  Peere  Wms.  83  ;  2  Vernon,  521 ;  2  Peere 
Wms.  128. 

Mr.  Powell,  contra,  contended  that  the  manifest  intention  of 
the  testator  was,  to  confer  a  benefit  upon  his  daughter  personally. 
In  two  clauses  of  the  will  he  mentioned  his  outstanding  debts  as 
a  fund  for  the  payment  of  the  legacies  ;  and  the  proceedings  for 
the  recovery  of  the  debt  due  by  Ayres,  showed  that  he  looked  to 
it  as  part  *  of  the  future  assets.  This  being  the  obvious  pgQ-i 
general  intent  of  the  testator,  he  argued  that  the  court  *- 
would  give  effect  to  it,  rather  than  rely  upon  a  doubtful  passage, 
to  the  prejudice  of  the  testator's  daughter  and  legatee,  whose 
claims  were  certainly  greater  than  those  of  mere  strangers. 

The  opinion  of  the  court  was  delivered  by 

GIBSON,  C.  J. — This  is  an  exceedingly  plain  case.  A  testator 
directs  his  property  to  be  equally  divided  among  his  children,  but 
orders  that  debts  owing  to  him  by  any  of  his  sons  or  sons-in-law, 
except  those  forgiven  in  the  will,  be  deducted  from  the  share  of 
such  son  or  son-in-law  ;  and  that  the  residue  only  be  paid  to  him, 
whether  given  immediately  or  in  trust.  The  share  allotted  to  the 
wife  of  a  son-in-law  indebted  to  him  by  mortgage,  he  gives  to  her 
separate  use ;  and  the  question,  is  whether  the  mortgage  was 


90  SUPREME  COURT  [Dec.  Term, 

(White  e.  Arndt.) 

merged  in  her  share  and  extinguished  by  it,  or  whether,  though 
deducted  from  the  share,  it  remains  an  unsatisfied  incumbrance 
on  the  mortgagor's  land.  If  the  latter,  it  would  follow  that 
neither  the  daughter  nor  her  husband  got  any  thing  like  an  equal 
share  of  her  father's  estate.  The  argument  on  the  other  side  is, 
that  as  the  mortgage  was  not  forgiven,  it  necessarily  remains  a 
charge  in  favor  of  the  executors,  not  for  the  benefit  of  creditors 
(for  there  were  none)  but  for  the  separate  benefit  of  the  mort- 
gagor's wife,  and  the  other  children.  It  follows  not,  however, 
that  because  not  forgiven,  it  may  not  be  satisfied  out  of  the  wife's 
share.  It  is  better  for  her  that  it  should  be  so,  than  that  she 
should  get  a  sixth  of  it  to  her  separate  use.  If  it  had  been  for- 
given, it  would  have  ceased  to  be  a  debt,  and  it  would  have  been 
absurd  to  order  it  to  be  deducted.  To  do  so  would  have  been  to 
forgive  it  to  the  husband,  but  to  remember  it  to  the  wife.  It 
was  because  it  was  not  forgiven,  that  it  was  to  be  remembered  in 
the  general  division.  How  else  could  the  testator  direct  it  to  be 
satisfied  by  retaining  it  out  of  the  wife's  portion  ?  It  is  said, 
that  would  not  benefit  the  wife,  who  is  supposed  to  have  been  the 
principal  object  of  the  testator's  bounty.  Would  it  not  benefit 
her  to  have  her  husband's  debt  paid  and  his  land  disencumbered  ? 
But  there  is  no  peculiar  favor  evinced  to  his  married  daughters ; 
as  his  sons  and  sons-in-law  are  put  exactly  on  a  footing,  and  the 
share  of  the  wife  is  said  to  be  the  husband's.  This  equality  of 
consideration  between  daughters  and  their  husbands  is  common 
to  a  particular  class,  with  whom  the  most  usual  method  of  evi- 
dencing advancements,  is  to  have  recourse  to  notes,  obligations, 
or  book  entries,  to  stand  against  the  children  when  their  shares 
come  to  be  received. 

The  mortgage  is  therefore  declared  not  to  be  a  lien  on  the 
moneys  in  court ;  and  it  is  ordered  that  the  decree  of  the  court 

•/ 

in  this  particular  be  reversed,  and  the  report  of  the  auditors 
affirmed. 


[*91]  ['PHILADELPHIA,    JANUARY    16,    1836.] 

WHITE  agaimt  ARNDT. 

IN  ERROR. 

1.  Even  as  between  landlord  and  tenant,  fixtures  erected  by  the  latter  and 
which  he  is  entitled  to  remove,  must  be  removed  during  the  term  ;  after 
the  expiration  of  the  term,  the  tenant  can  neither  remove  them  nor  re- 
cover their  value  from  the  landlord. 

2.  This  rule  prevails  more  strictly  between  tenant  for  life  or  his  lessee,  and 
the  remainder  man ;  the  latter  of  whom  is  not  bound  by  any  agreement 


1835.]  OF  PENNSYLVANIA.  91 

(White  0.  Arndt.) 

between  the  tenant  for  life  and  his  lessee,  under  which  the  lessee  may 
have  erected  buildings  on  the  land. 

3.  The  acceptance  of  rent  from  the  lessee  by  the  remainder  man,  will  not 
be  deemed  a  ratification  of  such  agreement,  where  it  is  collateral  to  the 
lease,  and  it  does  not  appear  that  the  remainder  man  was  apprized  of  it. 

WRIT  of  error  to  the  Court  of  Common  Pleas  of  Northampton 
county,  to  remove  the  record  of  an  action  in  which  Abraham  Arndt 
was  plaintiff,  and  William  White,  defendant. 

The  material  facts  appeared  to  be  as  follows  :  Jacob  Arndt  de- 
vised to  his  wife  for  the  term  of  her  life,  a  brick  store,  a  stone 
house,  and  two  lots  of  ground,  in  the  borough  of  Easton,  with 
remainder  in  fee  to  Abraham  Arndt,  the  plaintiff.  The  widow 
afterwards  married  William  A.  Lloyd,  who,  with  his  wife,  demised 
the  premises  to  William  White,  for  the  term  of  three  years,  from 
the  1st  day  of  July,  1829,  at  the  rent  of  300  dollars  per  annum. 
Mrs.  Lloyd,  the  tenant  for  life,  died  about  the  25th  December, 
1829.  White,  the  defendant,  continued  to  occupy  the  premises, 
and  paid  rent  quarterly,  to  the  plaintiff,  until  the  1st  of  April, 
1832.  The  premises  were  sold  by  the  plaintiff  at  public  sale,  on 
the  23d  of  February,  1832. 

The  present  action  was  originally  instituted  before  a  justice  of 
the  peace,  to  recover  the  sum  of  seventy-five  dollars,  being  one 
quarter's  rent  of  the  premises  due  on  the  1st  of  April,  1832. 
After  hearing,  the  justice  rendered  judgment  for  the  full  amount 
of  the  plaintiff's  demand.  The  defendant  having  appealed  to  the 
Court  of  Common  Pleas,  the  defendant  declared  in  assumpsit ; 
and  issue  having  been  joined  on  the  plea  of  non  assumpsit,  the 
cause  came  on  for  trial  on  the  27th  of  January,  1835.  The 
plaintiff  having  proved  the  occupation  of  the  premises  by  the 
defendant,  during  the  term  of  three  months,  and  the  amount  paid 
by  him  for  the  preceding  quarters,  the  defendant  offered  to  prove 
in  substance,  that  with  the  knowledge  and  approbation  of  Mr. 
and  Mrs.  Lloyd,  he  had  erected  upon  the  lot  of  ground,  a  frame 
stnble,  and  two  frame  shops,  and  had  made  other  improvements 
of  the  property  ;  that  it  was  agreed  between  them  (the  said  Lloyd 
and  wife,  and  White,)  that  White  was  to  have  the  liberty  of  sell- 
ing or  removing  the  stable,  and  that  the  *shops  were  to  be  r*nor 
taken  by  the  owners  of  the  lots  at  a  valuation,  or  if  a'  I 
valuation  could  not  be  agreed  upon,  that  he  was  to  have  the  privi- 
lege of  removing  the  materials  :  That  when  the  premises  were 
put  up  at  public  sale,  he  requested  the  crier,  by  a  written  paper, 
to  give  notice  of  his  claim,  but  the  plaintiff's  agent  refused  to  per- 
mit the  notice  to  be  read  :  That  the  purchaser  took  possession  of 
these  buildings,  with  the  other  parts  of  the  property,  and  still  re- 
tains them. 

The  plaintiff's  counsel  objected  to  this  evidence,  and  the  court 


92  SUPREME  COURT  [Dec.  Term, 

(White  v.  Arndt.) 

refused  to  receive  it ;  upon  which  a  bill  of  exceptions  was  tendered ; 
and  the  jury  having  found  for.  the  plaintiff,  the  record  was  re- 
moved to  this  court. 

The  only  question  argued  was  the  admissibility  of  the  evidence 
in  the  court  below. 

Mr.  Brooke,  for  the  plaintiff  in  error,  contended,  that  the  build- 
ings were  the  property  of  White,  the  lessee,  and  that  he  had  a 
right  to  remove  them.  There  are  few  cases  in  this  country  on 
the  subject  of  the  right  of  a  tenant  to  erections  made  by  him  ; 
but  the  general  doctrine  is  believed  to  sanction  the  defence.  In 
Whitiny  v.  Brastow,  (4  Pickering,  310,)  it  was  said  by  the  court, 
that  according  to  the  decisions,  a  tenant  for  life  or  years,  or  even 
a  tenant  at  will,  may,  at  the  expiration  of  his  estate,  remove  from 
the  freehold  all  such  improvements  as  were  erected  or  placed 
there  by  him,  if  by  such  removal  the  premises  shall  not  be  put  in 
a  worse  plight  than  when  he  took  possession.  The  same  law  was 
recognized  in  Doty  v.  Q-orman,  (5  Pickering,  487,)  and  it  was 
there  said  that  "had  the  landlord  determined  the  estate,  the  ten- 
ant would  have  been  entitled  to  sufficient  time  to  remove  his  shop 
and  other  property."  17  Mass.  Rep.  282  ;  1  Pickering,  43  ; 
Van  Ness  v.  Packard,  (2  Peters'  Rep.  137.)  The  cases  are 
collected  and  digested  in  the  recent  Treatise  of  Amos  &  Ferrand, 
where  it  clearly  appears  that  buildings  like  those  erected  by  the 
plaintiff  in  error  are  removable.  [KENNEDY,  J. — There  is  very 
little  doubt  about  the  right  of  the  tenant  to  remove  certain  species 
of  buildings  ;  but  the  question  here  is,  whether,  if  he  neglects  to 
exercise  the  right  while  he  is  in  possession,  he  can  make  defence 
to  an  action  for  rent  that  the  landlord  has  had  the  benefit  of 
them  ?]  We  contend  that  the  plaintiff  below  derived  a  substantial 
benefit  from  our  buildings,  by  the  increased  price  he  received  from 
the  purchaser ;  and  therefore  we  have  an  equitable  defence. 
There  was  an  express  agreement  with  Lloyd,  the  tenant  for  life, 
which  the  plaintiff  must  be  supposed  to  have  sanctioned  by  con- 
tinuing the  defendant  as  tenant.  The  case  of  Downing  v.  Bald- 
win, (1  Serg.  &  Rawle,  298,)  which  will  be  cited  on  the  other 
side,  decided  that  mere  denial  of  a  right  does  not  constitute  a 
disturbance  of  that  right.  Here  there  was  not  only  a  denial  *of 
r*qq-i  the  tenant's  right,  but  a  conversion  of  his  property  to  the 
-J  use  of  the  landlord. 

Mr.  Porter,  for  the  defendant  in  error.  The  true  question  is, 
whether  a  lessee  can  take  defence  on  the  ground  of  a  contract 
with  a  former  tenant  for  life,  to  the  prejudice  of  the  remainder 
man,  his  landlord.  All  the  evidence  offered  here  was  res  inter 
alios  acta.  The  law  upon  this  subject  is  well  settled,  as  will 


1835.]  OF  PENNSYLVANIA.  93 

(White  v.  Arndt.) 

appear  from  the  cases  collected  in  4  Bac.  Ab.  tit.  Leases,  (I.) 
Whatever  may  have  been  the  right  of  the  defendant  to  remove 
the  buildings  during  the  existence  of  the  tenancy,  it  furnishes  no 
ground  of  defence  in  this  action.  Unliquidated  damages  cannot 
be  set  off,  Kachline  v.  Malhallon,  (2  Dall.  237 ;  s.  c.  1  Yeates, 
571.)  It  is  alleged  that  the  purchaser  has  refused  to  rermit 
the  buildings  to  be  removed.  If  so,  the  defendant  may  possibly 
recover  against  him  by  an  action  of  trover;  but  the  mere  cir- 
cumstance of  the  plaintiff's  agent  having  refused  to  allow  the 
defendant's  notice  to  be  read  at  the  sale,  will  not,  according  to 
the  case  of  Downing  v.  Baldwin,  make  him  liable  to  the 
defendant. 

The  opinion  of  the  court  was  delivered  by 

ROGERS,  J. — It  is  a  general  rule  of  the  common  law,  that 
whatever  is  annexed  to  the  inheritance  during  the  tenancy, 
becomes  so  much  a  part  of  it,  that  it  cannot  be  removed  by  the 
tenant,  although  the  improvements  may  have  been  made  at  his 
own  expense.  As  in  Warner  v.  Fleetwood,  4  Rep.  63,  glass  put 
in  by  the  tenant,  or  wainscot  fastened  by  nails,  was  held  part  of 
the  inheritance.  To  this  rule  there  are  certain  exceptions,  nearly 
as  old  as  the  rule  itself,  as  between  landlord  and  tenant,  that 
whatever  buildings  or  other  fixtures  are  erected  for  the  purpose 
of  carrying  on  trade  or  manufactures,  may  be  removed  by  the 
tenant  during  the  term.*  The  cases  upon  this  subject  are  col- 
lected by  Lord  Ellenborough,  in  Elmes  v.  Maw,  (3  East,  38,)  and 
by  Mr.  Justice  Story,  in  Van  Ness  v.  Packard,  (2  Peters'  Rep. 
145.)  As  to  substantial  improvements,  they  are  usually  made  a 
consideration  for  extending  the  term  of  the  lease ;  or  some  col- 
lateral agreement  is  made,  so  as  to  allow  of  some  compensation 
to  the  tenant.  The  latter  was  the  course  adopted  by  the  parties 
to  this  contract.  The  tenant,  White,  erected  on  the  premises, 
several  improvements,  among  which  was  a  stable,  and  two  shops, 
which  it  is  said  greatly  enhanced  the  value.  It  was  agreed  at  or 
about  the  time  of  the  erection  of  these  improvements,  between 
White  and  Mr.  and  Mrs.  Lloyd,  who  had  an  estate  for  life,  that 
White  was  to  have  the  liberty  of  selling  or  removing  the  stable, 
and  that  the  barber's  shop,  and  other  small  buildings  erected  by 
him  were  to  be  taken  at  a  valuation;  and  that  if  a  valuation 
should  not  be  agreed  on,  White  was  to  have  the  privilege  of 
removing  the  materials  *of  the  shops.  As  between  the  r* 0,4-1 
parties  to  this  contract,  this  agreement  was  a  good  consid-  *• 
eration ;  and  any  violation  of  it  on  the  part  of  Lloyd,  would  have 
subjected  him  to  an  action.  And  I  am  inclined  to  believe  on  the 

*8ee  10  Barr,  253 ;  3  P.  F.  Smith,  271. 


94  SUPREME  COURT  (Dee.  Term, 

(Whiter.  Arndt.) 

authority  of  Van  Ness  v.  Packard,  that  if  the  estate  of  Lloyd 
had  continued  until  the  end  of  the  term,  White  would  have  had  a 
right  to  remove  the  buildings  from  the  premises,  without  the  con- 
sent of  the  owner  of  the  remainder,  notwithstanding  the  general 
principle,  that  whatever  is  annexed  to  the  freehold,  becomes  part 
of  it,  and  cannot  afterwards  be  removed,  except  by  him  who  is 
entitled  to  the  inheritance.  The  exception  in  favor  of  trade, 
which  is  founded  on  public  policy,  and  intended  to  encourage 
manufactures  and  the  improvements  of  the  country,  may  well 
apply  to  this  case ;  for  the  question  does  not  depend  upon  the  size 
or  form  of  the  house,  or  the  manner  in  which  it  is  built ;  but  the 
only  inquiry  always  is,  whether  it  was  intended  for  purposes  of 
trade  or  not ;  and  I  cannot  believe  that  the  nature  of  the  business, 
whether  agricultural  or  mercantile,  can  make  any  difference.  But 
while  these  principles  are  conceded,  I  am  unwilling  to  extend  them 
beyond  the  duration  of  the  estate  which  the  tenant  for  life  has  in 
the  premises,  so  as  to  subject  the  owner  of  the  fee  to  payment  for 
the  buildings,  or  to  compel  him  to  allow  them  to  be  removed.  In 
the  case  at  bar,  Lloyd's  interest  was  in  right  of  his  wife,  who  had 
a  life  estate.  On  her  death,  the  interest  in  possession  vested  in 
Arndt,  the  owner  of  the  remainder  in  fee. 

The  death  of  Mrs.  Lloyd  put  an  end  to  White's  lease.  Now, 
there  is  no  principle  better  established  by  authority,  than  that, 
even,  as  between  landlord  and  tenant,  fixtures  must  be  removed 
during  the  term.  After  the  term  they  become  inseparable  from 
the  freehold,  and  can  neither  be  removed  by  the  tenant,  nor  recov- 
ered by  him  as  personal  chattels,  by  an  action  of  trover,  or  for 
goods  sold  and  delivered.  1  Atk.  477 ;  ex  parte  Quincy,  3  Atk. 
13  ;  Lamb  v.  Lamb,  and  the  note,  2  Peters'  R.;  Lord  Dudley  v. 
Lord  Ward,  Ambl.  113 ;  Co.  Lit.  53  a;  Brooke  Waste,  104, 142 ; 
Cooper's  case,  Moore,  177 ;  Day  v.  Disbitch,  Cro.  E.  374 ; 
Lord  Derby  v.  Asquith,  Hob.  235;  4  Term  Rep.  745;  7  Term, 
Rep.  157. 

It  has  been  contended  by  the  counsel  for  the  plaintiff  in  error, 
that  the  tenant  for  life  can  bind  the  remainder  man  by  contract, 
so  as  to  compel  him  either  to  pay  for  improvements  which 
enhance  the  value  of  the  property,  or  to  permit  them  to  be 
removed  when  it  can  be  done  without  injury  to  the  inheritance. 
For  this  position,  they  rely  on  Whiting  v.  Brastow,  (4  Pickering, 
310,)  in  which  it  is  ruled,  that  a  tenant  for  life,  years,  or  at  will, 
may  at  the  determination  of  his  estate  remove  such  erections,  &c. 
as  were  placed  on  the  premises  by  himself,  the  removal  of  which 
will  not  injure  the  freehold,  or  put  the  premises  in  a  worse  plight 
than  when  he  entered.  In  Whiting  v.  Brastow,  the  tenant 
removed  a  padlock  used  for  securing  a  binn  house,  and  movable 


1835.]  OF  PENNSYLVANIA.  95 

(White  D.  Arndt.) 

boards  fitted  and  used  for  *putting  up  corn  in  binns.  That  r*qc-i 
was  a  case  between  landlord  and  tenant,  and  not  between  l 
tenant  for  life  and  the  remainder  man ;  the  rule  being  that,  as 
between  the  latter,  in  questions  respecting  the  right  to  what  are 
ordinarily  called  fixtures,  as  between  tenant  for  life  or  in  tail  and 
the  remainder  man  or  reversioner,  the  law  is  considered  more  fav- 
orable than  between  landlord  and  tenant.  It  is  construed  most 
strictly  between  the  executor  and  heir,  in  favor  of  the  latter ; 
more  liberally  between  tenant  for  life,  or  in  tail,  and  the  remainder 
man,  or  reversioner,  in  favor  of  the  former ;  and  with  much 
greater  latitude  between  landlord  and  tenant,  in  favor  of  the 
tenant.  A  distinction  arises,  also,  between  the  cases,  from  the 
nature  of  improvements.  In  Whiting  v.  Brastow,  the  court  treated 
the  improvements  as  personal  chattels  ;  but  this  cannot  be  said  of 
these  erections,  which  arc  of  a  permanent  substantial  kind,  and 
which  surely  would  not  have  gone  to  the  executors  of  Mrs.  Lloyd, 
if  the  buildings  had  been  erected  by  her.  It  would  have  been 
waste  in  the  tenant  to  have  removed  them ;  for  it  is  in  general 
true,  that  when  a  lessee  having  annexed  any  thing  to  the  freehold, 
during  his  term,  afterwards  takes  it  away,  it  is  waste.  Co.  Lit. 
53  ;  Moore,  177  ;  4  Co.  64  ;  Hob.  234. 

Doty  v.  (jrorham  (5  Pickering,  487),  me  rely  decides  that  a  shop 
placed  on  the  lands  of  the  plaintiff,  with  his  permission,  was  a 
chattel,  and  as  such  may  be  sold,  on  an  execution  against  the 
owner,  and  that  the  purchaser  has  a  right  to  enter  on  the  land  and 
remove  the  shop.  This  principle  it  is  not  necessary  to  controvert, 
as  the  application  of  it  is  not  perceived. 

It  must  be  remarked,  that  the  agreement  does  not  purport  to 
bind  Arndt,  the  owner  of  the  remainder  in  fee,  and  seems  to  have 
been  made  under  the  belief  and  with  the  wish,  that  the  life  inter- 
est would  last  as  long  as  the  lease,  which  was  but  for  three 
years.  But  if  the  intention  were  to  bind  him,  the  .objection 
arises,  that  it  is  not  competent  for  them  to  make  an  agreement, 
to  affect  the  inheritance.  On  the  falling  in  of  the  particular 
estate,  the  remainder  man  or  reversioner  is  entitled  to  all  the 
improvements,  which  the  law  denominates  fixtures,  without  regard 
to  the  naanner  they  are  constructed,  the  persons  who  may  have 
erected  them,  or  whether  they  may  contribute  to  enhance  the 
value  of  the  property  or  not.  If  the  tenant  for  life,  or  the  per- 
son with  whom  he  contracts,  wishes  to  avoid  the  consequences, 
the  improvements  must  be  removed  during  the  continuance  of  the 
first  estate  ;  or  the  assent  of  the  remainder  man,  or  reversioner, 
must  be  obtained.  There  is  nothing  which  shows  any  assent  to 
the  agreement  by  Arndt.  The  deposition  of  Lloyd  proves 
nothing  further  than  that  the  rent  was  made  known  to  Arndt, 
and  that  he  made  no  objection  against  White  being  the  tenant  for 

VOL.  i. — 7. 


95  SUPREME  COURT.  [Dec.  Term, 

(Wimmer's  Appeal.) 

the  remainder  of  the  lease.  But  not  a  word  was  said,  so  far  as 
appears,  about  this  agreement.  It  is  in  general  true,  that  where 
there  is  a  lease  for  years,  and  by  consent  of  both  parties  the 
tenant  continues  in  possession  afterwards,  the  law  implies  a  tacit 
r*Qf1  renova^on  °*  *tne  contract.  But  that  principle  cannot 
J  fairly  be  made  to  apply  to  this  case  ;  for  here,  although 
the  lease  terminated  at  the  death  of  Mrs.  Lloyd,  and  the  teuant 
continued  in  possession  with  the  consent  of  Arndt,  yet  that  would 
bind  the  parties  to  nothing  more  than  what  came  within  the  terms 
of  the  lease..  It  would  not  include  the  case  of  a  collateral  agree- 
ment, independent  of  the  lease  itself.  The  agreement  on  which 
this  case  turns,  was  a  collateral  agreement,  of  which  it  does  not 
appear  that  Arndt  was  in  any  manner  apprized,  or  to  which  there 
is  not  the  slightest  evidence  he  assented,  either  directly,  or  by 
necessary  implication. 

Judgment  affirmed. 

Cited  by  the  Court,  5  Wharton,  143  ;  7  Casey,  158  ;  2  Wright,  353. 


[PHILADELPHIA,  JANUARY  18,  1836.] 
WIMMER'S  APPEAL. 

1.  Under  the  provisions  of  the  act  of  the  29th  of  March,  1832,  the  Orphans' 
Court  has  power  to  compel  a  settlement  of  accounts  by  a  testamentary 
trustee. 

2.  Where  a  testamentary  trustee  had,  upon  his  application  to  the  Court  of 
Common  Pleas,  under  the  act  of  the  14th  April,  1828,  been  discharged 
from  the  trust,  and  a  new  trustee  had  been  appointed  on  the  application 
of  the  cfstui  que  trust,  it  was  held,  that  these  proceedings  were  conclu- 
sive, and  that  the  Orphans'  Court  could  not  afterwards  compel  the  old 
trustee  to  settle  an  account  in  that  court. 

THIS  was  an  appeal  from  a  decree  of  the  Orphans'  Court  of 
Bucks  county,  in  the  matter  of  the  settlement  of  the  accounts  of 
Philip  Wimmer,  surviving  trustee  of  Margaret  Swartz,  intermar- 
ried with  John  Swartz. 

The  facts  material  to  a  correct  understanding  of  the  points 
decided,  are  as  follows : 

Michael  Detterly,  the  elder,  by  his  last  will  and  testament, 
dated  the  22d  of  December,  1806,  and  proved,  in  the  register's 
office,  on  the  4th  of  December,  1812,  among  other  things  devised 
and  bequeathed  as  follows,  viz. :  First — "  I  give  unto  my  son, 
Michael,  all  those  goods  and  effects  and  improvements,  which  I 
gave  to  him  when  he  was  first  married.  I  also  give  and  bequeath 


1835.]  OF  PENNSYLVANIA.  96 

(Wimmer's  Appeal.) 

to  my  daughters,  Mary  and  Eve,  all  the  household  goods  I  gave 
them,  which  I  give  and  bequeath  unto  them,  in  lieu  of  services 
they  rendered  to  me,  after  they'became  of  lawful  age  ;  and  as  to 
all  the  rest,  residue  and  remainder  of  all  my  personal  estate,  goods 
and  chattels,  rents,  interests  and  of  whatever  kind  and  nature 
whatever.  I  *give,  devise,  and  bequeath  unto  my  dearly 
beloved  children,  Michael,  Henry,  John,  Elizabeth,  Catha- 
rina,  Barbara,  Margaret,  Mary,  Magdalena,  Susannah,  and  Eve, 
to  be  divided  in  equal  shares  between  them — (provided  always, 
that  my  daughters,  Margaret,  Barbara  and  Magdalena  shall  only 
enjoy  the  interest  of  such  sum  or  sums  as  may  come  to  their 
shares,  or  lots  ;  but  the  principal  sums  to  remain  in  the  hands  of 
the  executors  hereinafter  named,  during  their  life  times,  and  after 
their  respective  deceases,  to  be  divided  to  each  of  their  children, 
share  and  share  alike,  excepting  my  daughter  Margaret's  -son 
Jacob  is  to  have  no  share  for  divers  good  causes  me  thereunto 
moving.)  Further,  it  is  my  absolute  will  and  testament,  that 
neither  of  my  said  children,  which  has  or  have  received  any  sum  or 
sums  of  money,  for  which  they  have  given  me  bonds,  notes,  or 
standing  as  book  debts,  shall  receive  any  part,  until  those  which 
have  not  received  anything  shall  be  equal  in  share  or  shares ;  and 
lastly,  I  do  hereby  nominate,  constitute,  and  appoint  my  trusty 
son,  Michael  Detterly,  and  my  trusty  son-in-law,  to  be  my  execu- 
tors of  this  my  last  will  and  testament,"  &c.,  &c. 

Margaret,  one  of  the  legatees  named  in  the  said  will,  was,  at 
the  date  thereof,  married  to  John  Swartz. 

In  the  inventory  filed  by  the  executors,  among  the  debts  "  due 
by  the  heirs  upon  obligations,"  is  the  following: 

John  Swartz  .£191  16s.  Id, 

And  among  those  "due  by  book,"  was  enumerated: 
John  Swartz  £21  6s.  Sd. 

The  executors  settled  their  accounts  according  to  law,  on  the 
2£d  of  December,  1813,  when  there  appeared  to  be  a  balance  in 
their  hands,  including  the  debts  charged  to  the  heirs  of 

$17,375  82, 

Which,  divided  into  eleven  parts,  would  give  to  each  legatee 
the  sum  of  $1,579  62. 

The  share  of  Margaret  Swartz  being  thus  $1,579  62 

If  the  debts  due  by  the  husband  to  the  testator  were 
deducted,  amounting  to : 

Book  account,  <£21  6s.  Sd.  or  $56  39 

Bond,  &c.  -£191  16s.  Id.  or  $511  54 

$568  43 


There  would  remain  the  nett  sum  of  $1011  19- 


97  SUPREME  COURT.  [Dee.  Term, 

(Wimmer's  Appeal.) 

Michael  Detterly,  one  of  the  executors,  paid  the  interest  upon 
this  sum  to  Margaret  Swartz,  the  legatee,  annually,  from  the 
year  1813  to  1832,  when  he  died.  On  the  23d  of  April,  1832, 
r*qfti  Philip  *Wimmer,  the  surviving  executor,  presented  his 
J  petition  to  the  Court  of  Common  Pleas  of  Bucks  County, 
setting  forth  that  by  reason  of  the  death  of  the  said  Michael  Det- 
terly, the  trust  created  by  the  said  will  had  survived  to  him : 
That  he  had  never  received  any  part  of  the  money  accruing  to  the 
said  Margaret:  and,  that  being  advanced  in  years  and  residing  at 
a  distance  from  the  said  Margaret,  he  was  desirous  of  being  re- 
lieved from  the  said  trust :  He  therefore  prayed  the  court  to  dis- 
charge him  and  appoint  another  in  his  place. 

At  the  same  time  was  presented  the  petition  of  Joseph  Ather- 
holt,  administrator  of  the  goods,  &c.,  of  Michael  Detterly,  the 
deceased  co-trustee,  setting  forth  that  the  said  Michael  received 
the  principal  amount  of  the  share  accruing  to  the  said  Margaret, 
and  paid  her  the  interest  during  his  life  ;  that  as  administrator  he 
had  in  his  hands  the  sum  of  $1011  19,  and,  as  the  co-trustee, 
Philip  Wimmer,  had  petitioned  -to  be  discharged  ;  he  prayed  the 
court  to  appoint  some  other  person  to  receive  the  money. 

Whereupon  the  court  ordered  and  directed,  that  Philip  Wim- 
mer should  be  dismissed  from  his  said  trust. 

At  the  same  court  was  presented  the  petition  of  John  Swartz, 
the  husband  of  the  said  Margaret,  setting  forth  the  preceding 
facts,  and  praying  the  court  to  appoint  some  suitable  person  as 
trustee.  Accordingly,  on  the  18th  of  June,  1832,  the  court  ap- 
pointed Francis  Hendricks  trustee  of  the  said  Margaret  Swartz, 
in  the  place  of  Philip  Wimmer,  discharged. 

On  the  28th  of  December,  1832,  the  petition  of  John  Swartz, 
in  right  of  his  said  wife,  was  presented  to  the  Orphans'  Court  of 
Bucks  County,  setting  forth  the  will  of  Michael  Detterly,  sen., 
and  the  appointment  of  his  son,  Michael  Detterly,  and  his  son-in- 
law,  Philip  Wimmer,  as  trustees  for  his  daughter  Margaret,  and 
praying  a  citation  to  the  said  Philip  Wimmer,  and  to  Joseph 
Atherholt,  administrator  of  Michael  Detterly,  Jr.,  deceased,  com- 
manding them  to  file  a  statement  of  their  accounts  as  trustees 
aforesaid,  returnable  to  the  next  Orphans'  Court. 

The  answer  of  Philip  Wimmer  denied  his  having  received  any 
money  of  the  said  Margaret  Swartz,  and  set  forth  the  proceedings 
in  the  Common  Pleas,  by  which  he  was  discharged  from  the  trust, 
as  a  bar  to  his  liability  to  account. 

The  answer  of  Atherholt  relied  upon  the  same  proceedings, 
and  u}x>n  his  payment  of  the  fund  to  the  trustee  appointed  by 
the  Common  Pleas.  He  admitted  that  he  had  in  his  hands,  how- 
ever, the  interest  of  seven  months  on  the  principal  sum,  which 
had  accrued  to  the  period  of  the  death  of  Michael  Detterly,  and 
which  he  had  tendered  to  John  Swartz. 


1835.]  OF  PENNSYLVANIA.  98 

(Wimmer' s  Appeal.) 

On  the  13th  of  March,  1833,  the  Orphans'  Court  ordered  Philip 
Wimmer  to  file  an  account  of  his  trusteeship  in  the  register's 
office  of  Bucks  County,  and  he  having  refused  compliance,  the 
court,  *upon  the  application  of  the  petitioner,  under  §  IX.  r*qq-i 
of  the  fifty-seventh  section  of  the  act  of  29th  March,  1832,  I 
directed  a  reference  to  auditors  to  take  proof  of  the  facts,  and  to 
report  an  account  against  the  defendant. 

On  the  5th  of  June,  1833,  the  auditors  reported  an  account, 
in  which  they  charged  Wimmer  with  one  eleventh  part  of  the 
estate  of  Michael  Detterly,  and  gave  him  credit  for  the  debts  due 
by  Margaret  Swartz  and  her  husband  to  her  father  ;  the  balance 
being  as  above  stated,  $1011  19.  They  also  stated  an  interest 
account,  finding  a  balance  due  by  Wimmer  to  Margaret  Swartz  of 
$57  44. 

Both  parties  excepted  to  this  report.  The  petitioner  Swartz, 
on  the  ground,  principally,  of  the  debts  due  by  the  husband  hav- 
ing been  deducted  from  the  wife's  share  of  the  estate ;  and  the 
defendant,  because  he  was  not  accountable  at  all,  the  money  never 
having  been  in  his  hands. 

On  the  12th  of  November,  1834,  the  Orphans'  Court,  after  ar- 
gument, set  aside  so  much  of  the  report  of  the  auditors  as  credited 
the  trustee  with  the  sum  of  $511  54 ;  and  directed  the  trustee  to 
be  charged  with  that  sum,  and  interest  from  the  22d  of  April, 
1813. 

The  defendant,  Wimmer,  having  appealed  to  this  court,  assigned 
the  following  errors : 

1.  The  court  erred  in  decreeing  that  the  sum  of  $511  54,  with 
which  the  trustee  is  credited  in  the  auditors'  report,  for  bonds 
and  notes  inventoried  against  John  Swartz,  be  struck  off  the  credit 
side  of  the  account,  and  that  the  executor  be  charged  in  the  ac- 
count with  the  said  sum  of  $511  54,  with  interest  from  the  22d 
of  December,  1813. 

-  2.  The  court  also  erred  in  decreeing  that  Philip  Wimmer,  the 
surviving  trustee,  should  account  for  the  trust  fund  devised  to  the 
use  of  Margaret  Swartz  ;  when  the  administrators  of  the  deceased 
co-trustee  admitted,  in  his  answer  to  the  citation,  that  the  said 
trust  fund  was  in  his  hands,  and  that  the  said  Michael  Detterly, 
Jr.,  his  intestate,  had  received  and  held  the  said  trust  fund  in  his 
life  time,  and  had  always  acted  as  trustee  for  the  said  Margaret 
Swartz,  and  when  there  was  no  allegation  of  insolvency  on  the 
part  of  the  said  Michael  Detterly,  Jr. 

3.  The  court  erred  in  refusing  to  compel  the  administrator  of 
Michael  Detterly,  Jr.,  the  trustee  in  whose  hands  the  trust  money 
had  been  placed,  to  file  a  settlement  of  his  accounts  of  the  said 
trust  fund. 

4.  The  court  erred  in  compelling  Philip  Wimmer  to  file  a  set- 


99  SUPREME  COURT  [Dec.  Term, 

(Wimmer's  Appeal.) 

tlement  of  his  accounts  as  trustee  of  Margaret  Swartz,  when  he 
had  been  previously  discharged  from  the  trust  by  the  Court  of 
Common  Pleas. 

5.  The  Orphans'  Court  had  no  jurisdiction  of  the  matter ;  but 
r*100l     ^e  *Proceedings  on  tne  citation  and  settlement  should 
-"     have  been  in  the  Court  of  Common  Pleas. 

Mr.  Porter,  for  the  appellant : 

1.  The  Orphans'  Court  had  no  jurisdiction  in  the  case.     They 
had  no  power,  until  it  was  expressly  given  by  the  act  of  1834,  to 
compel  payment  of  legacies.     MiCullough  v.  Montgomery,  (7 
Serg.  &  R.  31.)      As  soon  as  the  executors  settled   their  ac- 
counts in  1813,  in  the  Orphans'  Court,  and  those  accounts  were 
confirmed,  their  functions  as  executors  ceased,  and  those  of  trus- 
tees commenced.     Now,  the  Orphans'  Court  has  never  been  sup- 
posed to  possess  jurisdiction  over  trustees,  except  in  some  special 
cases,  where  there  are  minors.     (Act  of  1713.)    Here  there  was 
no  minor,  and  the  estate  in  their  hands  was  not  that  of  a  decedent. 
The  acts  of  1818,  1823,  1825,  &c.,  which  give  the  common  Pleas 
jurisdiction  of  trusts  and  over  trustees,  are  general  in  their  terms, 
and  seem  to  include  all  cases  of  trust.     These  acts  have  been 
held  to  extend  to  executors.     Morrow  v.  Brenizer,  (2  Rawle, 
183.)     The  act  of  1832,  relating  to  Orphans'  Courts,  did  not  go 
into  operation  until  October,  1832,  after  the  jurisdiction  of  the 
Common  Pleas  had  attached — though  it  does  not  appear  that  that 
act  has  made  any  alteration  in  the  jurisdiction  of  the  Orphans' 
Court,  respecting  trusts. 

2.  The  court  had  no  power  to  require  a  settlement  by  the  ap- 
pellant, after  he  had  been  discharged  by  the  Court  of  Common 
Pleas  from  his  trust.     The  act  of  the  14th  April,  1828,  autho- 
rizes that  court  to  discharge  a  trustee,  either  on  his  own  applica- 
tion, or  on  the  application  of  the  cestui  que  trust.    It  provides  for 
due  notice  to  all  parties  interested,  and  gives  an  appeal  to  the 
party  aggrieved.     The  proceedings,  then,  cannot  be  disturbed  in 
this   collateral   way.     Besides,  it   appears   by    the   record,  that 
Swartz  actually  participated  in  the  proceedings  in  the  Common 
Pleas,  and  ratified  them  by  applying  for  a  new  trustee. 

3.  4.  The  Orphans'  Court  was  wrong  in  charging  Wimmer  with 
any  part  of  the  trust  fund.     They  ought  to  have  exhausted  the 
estate  of  the  other  trustee,  before  they  came  upon  the  appellant, 
who  was  not  liable  in  the  first  instance.     Williams  on  Executors, 
1112,  1118,  1119,  1125,  &c. ;  2  Vernon,  299 ;  1  Peere  Williams, 
141  ;  4  Mudd.  Ch.  Rep.  191  ;  Wentworth  on  Executors,  306 ; 
Sterret's  Appeal,  (2  Penn.  Rep.  419 ;)  Lanyford  v.  Grascayne, 
(11  Vesey,  335;)   Gill  v.  The  Attorney  General,  (Hard.  314). 
The  settlement  of  a  joint  account  does  not  prove  that  both  exe- 


1835.]  OF  PENNSYLVANIA.  100 

(Wimmer's  Appeal.) 

cutors  received  the  money.  In  Brown's  Appeal,  (1  Dall.  312,) 
a  distinction  was  taken  between  the  creditors  and  legatees.  One 
administrator  cannot  sue  the  other  for  money  received  hy  him. 
Steinman  v.  Sanderson,  (14  Serg.  &  R.  357 ;)  Simon  v.  Al- 
bright, (12  Serg.  &  R.  *429 ;)  2Bridgman's  Digest, 650,  ,-*-,  M  -. 
s.  214;  12  Mod.  560;  Rex  v.  Bray,  (Parker,  172.) 

5.  The  court  erred  in  charging  the  appellant  with  the  amount 
of  the  hond.  It  was  conceded  that  Swartz,  the  obligor,  was 
insolvent.  There  the  loss  ought  to  have  been  borne  by  all  the 
children.  But  upon  the  true  construction  of  the  will,  this  bond 
ought  to  have  been  deducted  from  the  wife's  share.  Yoke  v. 
Barnet,  (1  Binn.  358,)  shows  the  rule  in  case  of  an  intestacy. 
This  may  be  considered  an  advancement  to  the  son-in-law,  for 
the  benefit  of  the  daughter ;  who  could  not  in  law  execute  a  bond. 
Wentz  v.  Dehaven,  (1  Serg.  &  R.  312,)  shows  that  a  loan  to  a 
son-in-law  may  be  regarded  as  an  advancement.  There  are  many 
cases  in  which  "  grand  children"  have  been  held  to  be  included 
in  the  words  "  children."  Pemberton  v.  Parke,  (5  Binn.  601 ;') 
G-ale  v.  Bennett,  (Ambler,  681 ;)  3  Vesey,  421 ;  4  Vesey,  437, 
693 ;  10  Vesey,  195 ;  2  Eden,  194.  Mr.  Porter  also  cited  Tor- 
bert  v.  Twining,  (1  Yeates,  432 ;)  Jamieson  v.  Brady,  (6  Serg. 
&  R.  466 ;)  Evans  v.  Knorr,  4  Rawle,  66 ;)  Newlin  v.  Newlin, 
(1  Serg.  &  R.  275.) 

Mr.  Randall,  for  the  appellee : 

1.  The  jurisdiction  of  the  Orphans'  Court  appears  clearly  from 
the  acts  of  1713  and  1832.     The  powers  given  by  the  act  of 
1713,  are  confirmed  by  the  constitution.     In  Richards  v.  yaker, 
(6  Serg.  &  R.  462,)  the  jurisdiction  of  the  Orphans'  Court  is  con- 
sidered to  go  beyond  the  estates  of  decedents.     Guier  v.  Kelley, 
(2  Binn.  299;)  M'Coy  v.  Porter,  17  Serg.  &  R.  60.)    _At  all 
events  the  act  of  1832  gave  jurisdiction.     This  is  a  remedial  act, 
and"  to  be  construed  liberally ;  and  although  the  Common  Pleas 
undertook  to  discharge  Wimmer,  before  the  act  went  into  opera- 
tion, yet  this  does  not  remove  his  liability  to  account  for  money 
received  previously.     M'Farland  v.    Commissioners,  £c.,  (12 
Serg.  &  R.  298.) 

2,  3.  This  was  a  joint  trust;  and  on  the  death  of  Detterly  the 
duties  and  responsibilities  survived  to  Wimmer.     It  is  said  that 
these  trustees  .divided  the  duties  between  them,  one  taking  care 
of  the  trust  for  the  daughter  Magdalena,  and  the  other  of  the 
trust  for  Margaret.     There  is  no  evidence  of  this  beyond  their 
answers.     They  are  bound  by  their  account  as  settled.     M'Coy 
v.  Porter,  (15  Serg.  &  R.  571.)     [GIBSON,  C.  J.— That  case  has 
been  reconsidered.]     It  is  true  that  the  decision  was  modified  at 
a  subsequent  term,  (17  Serg.  &  R.  59,)  but  the  principle  remains 
untouched.     After  the  lapse  of  nineteen  years  the  court  will  not 


101  SUPREME  COURT  [Dec.  Term, 

(Wimmer's  Appeal.) 

permit  the  account  to  be  reviewed.  The  distinction  taken  in  the 
case  of  Brown's  Appeal,  (1  Dall.  312,)  between  creditors  and 
legatees,  is  not  supported  by  the  authorities  ;  as  is  shown  by  the 
note  to  Mr.  Wharton's  edition  of  Dallas. 


F*1021  '          cour*  was  "g^  in  charging  Wimmer  with  the 

amount  of  Swartz's  bond.  The  receipt  of  the  interest 
from  1813,  relied  upon  on  the  other  side,  cannot  bind  Mrs. 
Swartz,  who  was  then,  and  is  yet,  a  feme  covert.  It  was  mani- 
festly the  intention  of  the  testator,  that  these  legacies  should  be 
for  the  sole  and  separate  use  of  his  married  daughters.  The 
cases  cited  show,  that  it  is  of  no  importance  what  words  are  used, 
if  the  intention  be  apparent.  Then,  as  to  the  suggestion  that  a 
son-in-law  is  to  be  included  in  the  term  children,  it  is  going  much 
further  than  any  case  has  yet  gone.  There  is  no  relationship  as 
in  the  case  of  a  grandchild.  It  has  been  held  that  a  grandchild 
by  marriage  is  not  entitled  to  take,  under  the  description  of  a 
child.  2  Williams  on  Executors,  725,  6. 

The  opinion  of  the  court  was  delivered  by  SERGEANT,  J.,  who, 
after  stating  the  material  facts,  proceeded  thus  : 

By  the  appellant's  fifth  exception,  a  question  has  been  made 
as  to  the  right  of  the  Orphans'  Court  to  call  trustees  to  account, 
which  it  is  proper  first  to  consider  ;  for  if  that  court  had  no  juris- 
diction in  the  matter,  it  would  be  unnecessary  to  discuss  the 
other  exceptions.  It  becomes  important  to  decide  this  point, 
because  proceedings  in  the  Orphans'  Court  against  trustees, 
merely  as  such,  have  not  been  very  frequent,  and  must  now 
depend  on  the  construction  of  the  recent  act  of  the  29th  March, 
1832,  relating  to  Orphans'  Courts.  A  reference  to  our  early  laws, 
shows  that  the  beginnings  of  the  Orphans'  Court  were  very  feeble  ; 
but  its  powers  have  since  been  extended  by  the  legislature,  until 
they  embrace  a  large  and  important  sphere  of  jurisdiction.  The 
first  law  of  the  province,  which  I  have  been  able  to  discover,  was 
passed  in  1693.  It  enacted,  that  the  justices  of  each  respective 
County  Court  should  sit  twice  in  every  year,  to  inspect  and  take 
care  of  the  estates,  usage,  and  employment  of  orphans  ;  which 
should  be  called  the  Orphans'  Court,  that  care  might  be  taken 
for  those  that  are  not  able  to  take  care  of  themselves.  Another 
law  of  the  same  year  required  all  executors,  and  guardians  to 
persons  under  age,  to  give  bond  to  the  Court  of  Orphans,  faith- 
fully to  discharge  their  trust.  It  is  probable,  that  both  the  name 
and  jurisdiction  of  this  court  were  borrowed  from  the  Court  of 
Orphans  of  the  city  of  London,  which  had  the  care  and  guardian- 
ship of  children  of  deceased  citizens  of  London,  in  their  minority, 
and  could  compel  executors  to  file  inventories,  and  give  security 
for  their  estates.  Priv.  Lond.  324.  It  is  from  the  same  source 
that  several  of  our  other  laws  and  usages  derived  their  origin,  — 


1835.]  OF  PENNSYLVANIA.  102 

(Wimmer's  Appeal.) 

such  as  foreign  attachments, — -feme-sole  traders, — married  women 
privately  examined,  conveying  their  estates,  with  their  hus- 
bands, by  deed  ;  which  practice  afterwards  pervaded  this  country 
*generally,  and  is  lately  established  in  England  by  stat-  r*-|AQn 
ute.  Priv.  Lond.  70,  187  ;  Hob.  225  ;  1  Cro.  699  ;  1  L 
Prest.  Abs.  Tit.  336.  None  of  these  were  known  to  the  common 
law  ;  but  may  be  accounted  for,  when  we  recollect  that  many  of 
the  first  colonists  who  accompanied  William  Penn,  came  from  the 
city  of  London.  In  1701,  by  the  act  for  establishing  courts  of 
jurisdiction  in  the  province,  the  Orphans'  Court  had  power  to 
award  process,  and  cause  to  come  before  them  all  and  every  such 
person  and  persons  as  were,  or  should  be,  entrusted  with,  or  in 
any  ways  accountable  for  any  lands,  tenements,  goods,  chattels 
or  estate,  belonging,  or  which  should  belong  to  any  orphans,  or 
persons  under  age,  either  as  guardians,  tutors,  trustees,  executors 
or  administrators,  and  cause  them  to  make  and  exhibit  within  a 
reasonable  time,  true  and  perfect  inventories  and  accounts  of  the 
said  estate,  and  to  require  and  take  bonds  and  securities  of  such 
guardians,  trustees,  tutors,  executors  and  administrators  for  the 
legacies,  portions,  shares  and  dividends  of  estates,  real  and  per- 
sonal, belonging  to  orphans  and  minors,  as  occasion  shall  require, 
&c.  This  act  was  repealed  not  long  afterwards  ;  but  in  1713,  the 
court  was  revived,  and  its  jurisdiction  more  precisely  marked  out, 
as  well  as  extended,  by  an  act,  which  remained  in  force  from  that 
time  till  1832.  It  was  declared  a  court  of  record ;  and  power 
was  given  to  it  to  cause  to  come  before  it  all  persons  who,  as 
guardians,  trustees,  tutors,  executors,  administrators,  or  other- 
wise, should  be  entrusted  with,  or  in  any  wise  accountable  for 
any  lands,  tenements,  goods,  chattels  or  estate,  belonging  to  any 
orphan  or  person  under  age,  and  to  cause  them  to  make  and  ex- 
hibit inventories  and  accounts  of  the  estate.  They  were  also 
empowered  to  oblige  the  register  general,  or  his  deputies,  to 
bring  in  duplicates  of  all  bonds,  accounts,  &c.,  relating  to  such 
estate.  By  the  third  section,  they  could  compel  persons,  having 
the  care  and  trust  of  minors'  estates,  to  give  security,  if  like  to 
prove  insolvent,  or  neglecting  to  file  inventories  and  accounts. 
By  the  fourth  section,  executors,  guardians,  or  trustees  might, 
by  leave  of  the  court,  put  out  their  minors'  money  at  interest ;  and 
in  the  eleventh  section  other  powers  over  trustees  for  minors 
were  given  to  the  court.  Various  supplements  to  this  act,  and 
acts  on  other  subjects,  passed  from  time  to  time,  greatly  enlarged 
the  power  of  the  Orphans'  Court.  Most  of  the  provisions  of 
these  acts  have  now  been  introduced  into  the  several  revised  codes 
of  laws,  passed  by  the  legislature  since  1830. 

In  the  fourth  section  of  the  act  of  the  22d  March,  1832,  re- 
lating to  Orphans'  Courts,  it  is  declared,  that  "  the  jurisdiction 


103  SUPREME  COURT  [/>«<?.  Term, 

(Wimmer's  Appeal.) 

of  the  several  Orphans'  Courts  shall  extend  to,  and  embrace  the 
appointment,  control,  removal  and  discharge  of  guardians, — the 
settlement  of  their  accounts — the  removal  and  discharge  of  exe- 
cutors and  administrators,  deriving  their  authority  from  the  regis- 
ter of  the  respective  county — the  settlement  of  the  accounts  of 
f*l  041  8UC^  executors  *an(l  administrators,  and  the  distribution 
J  of  the  assets,  or  surplusage  of  the  estates  of  decedents 
after  such  settlement,  among  creditors  or  others  interested ;  to 
the  sale  or  partition  of  the  real  estate  of  decedents  among  heirs — 
and,  generally,  to  all  cases  within  their  respective  counties, 
wherein  executors,  administrators,  guardians  or  trustees  are,  or 
may  be  possessed  of,  or  undertake  the  care  and  management  of, 
or  are  in  any  way  accountable  for  any  real  or  personal  estate  of 
a  decedent — and  such  jurisdiction  shall  be  exercised  in  the  manner 
hereinafter  provided."  The  fifty-seventh  section  points  out  the 
manner  of  proceeding  in  various  clauses,  adapted  to  the  respective 
cases,  against  persons  answerable  to  the  jurisdiction  of  the  court. 
Sections  fourteen,  sixteen,  and  twenty,  speak  of  trustees,  and 
other  sections,  of  executors,  administrators,  guardians,  or-  other 
accountants. 

It  will  be  observed,  by  a  comparison  of  the  acts  of  1701  and 
1713,  with  that  of  1832,  that  the  language  of  the  latter  is  more 
extensive,  in  relation  to  the  jurisdiction  over  trustees,  than  that 
of  the  former.  The  acts  of  1701  and  1713,  were  confined  to 
cases  of  trustees  having  property  belonging  to  orphans  or  per- 
sons under  age  ;  but  the  act  of  1832  comprehends,  generally,  all 
cases  where  trustees  are  accountable  for  the  estate  of  a  decedent. 
This  change,  in  the  words  of  the  act,  was  evidently  intended  to 
enlarge  the  power  of  the  court ;  and  there  are  many  instances  in 
which  such  a  power  is  salutary  and  useful ;  furnishing  a  more 
complete  and  speedy  remedy  against  a  trustee,  than  could  other- 
wise be  obtained.  It  is  true  that  a  remedy  is  here  given  to  a 
cestui  que  trust  of  property,  which  had  been  the  estate  of  a  de- 
cedent, which  other  cestui  que  trusts  might  not  enjoy.  But  it 
seems  to  have  been  the  policy  of  the  legislature,  to  confer  on  the 
Orphans'  Court  the  superintendence  of  the  property  of  decedents, 
in  almost  every  respect,  and  to  make  all  persons  accountable  in 
that  court,  into  whose  hands  such  property  came  ;  and,  indeed, 
to  enable  it  to  hear  and  determine,  by  proceedings  different  from 
those  of  courts  of  common  law,  almost  all  judicial  transactions, 
immediately  arising  from  the  decease  of  testators  or  intestates. 
In  the  recent  codes,  further  jurisdiction  is  vested  in  this  court 
over  many  subjects  never  before  possessed.  I  am  of  opinion  that 
the  Orphans'  Court  had  power  to  call  Wimmer  to  account,  as 
trustee,  under  the  will  of  M.  Detterly,  senior,  by  the  provisions 
of  the  act  of  the  29th  March,  1832. 


1835.]  OF  PENNSYLVANIA.  104 

(Wimmer's  Appeal.) 

But  in  the  case  before  us,  the  prior  decree  of  the  Court  of 
Common  Pleas,  on  the  petition  of  Wimmer,  dismissing  him  from 
his  trust,  was  conclusive ;  and  after  that  decree,  the  Orphan's 
Court  could  not  proceed  to  compel  him  to  appear  there  and  settle 
his  accounts.  By  the  third  section  of  the  act  of  the  14th  of 
April,  1828,  Avhere  a  trustee  has  executed  the  trust  or  powers 
delegated  to  him,  he  may  file  his  accounts  in  the  Court  of  Com- 
mon Pleas,  on  oath  or  affirmation,  exhibiting  a  particular  state- 
ment of  his  receipts  and  *  expenditures,  and  after  ap-  r*inr-i 
proval  by'  the  court,  may  pray  a  discharge.  Citation 
is  then  to  issue  to  persons  interested,  and  the  court  are  to  pro- 
ceed to  hear  and  determine,  and  if  it  appears  that  the  trustee  has 
executed  the  trust  agreeably  to  his  power,  he  is  to  be  discharged 
for  ever.  By  the  fourth  section,  any  trustee  who  may  not  have 
executed  the  trust  or  power  delegated  to  him,  and  who  is  desir- 
ous of  being  discharged  from  the  further  execution  of  the  trust, 
may  make  application  to  the  court,  setting  forth  the  facts,  and 
praying  the  leave  of  the  court  to  make  a  settlement  of  his  ac- 
counts, so  far  as  he  has  proceeded  in  the  execution  of  the  trusts, 
and  that  on  surrendering  the  residue  of  the  estate  under  his  care 
to  such  person  or  persons  as  the  court  may  appoint,  the  court 
will  make  an  order  dismissing  such  trustee  from  the  duties  of  his 
appointment — whereupon  the  court  is  to  proceed  to  hear  and  de- 
termine the  matter,  and  make  such  order  as  to  them  shall  appear 
just  and  equitable  ;  and  if  it  shall  appear  that  the  trustee  has  exe- 
cuted the  trust  agreeably  to  his  powers,  he  shall  be  discharged 
therefrom  for  ever.  The  5th  section  gives  a  right  of  appeal 
within  one  year. 

It  was  under  the  4th  section  that  the  proceedings  in  the  Com- 
mon Pleas  in  this  case  were  had.  Wimmer  stated  in  his  petition 
the  appointment  of  M.  Detterly,  Jr.,  and  himself  executors — that 
the  portion  of  Margaret  was  to  remain  in  their  hands — that  Det- 
terly received  Margaret's  share,  and  acted  as  her  trustee — his 
decease,  and  the  devolution  of  the  trust  on  Wimmer — that  he 
was  desirous  of  being  discharged  from  the  further  execution  of 
the  trust,  and  had  never  received  her  share  in  trust  for  her  use, 
and  prayed  the  court  to  make  an  order  dismissing  him  from  the 
duties  of  his  appointment  and  to  appoint  another.  Atherholt's 
petition  confirmed  this  statement,  and  both  were  accompanied  by 
an  affirmation.  The  court  then  decreed  that  Wimmer  should  be 
discharged  from  the  trust  for  ever.  In  so  doing,  we  must  take  it 
for  granted  it  was  after  hearing  and  examination  of  the  allega- 
tions and  proof — that  it  appeared  to  them,  in  the  words  of  the 
act,  just  and  equitable  they  should  do  so — that  it  also  appeared 
Wimmer  had  executed  the  trust  agreeably  to  his  powers,  and  that 
the  contents  of  his  petition  were  true,  namely,  that  he  had  re- 


105  SUPREME  COURT  [Dec.  Term, 

(Sletor  v.  Oram.) 

ceived  no  trust  money  and  had  no  account  to  settle.  Otherwise 
the  court  would  not  have  dissmissed  him,  without  first  requiring 
him  to  settle  his  account.  If,  after  being  thus  forever  dismissed, 
on  the  ground  that  he  had  executed  his  trust,  and  had  received 
no  moneys  as  trustee,  he  can  again  be  called  on  in  another  court, 
to  answer  a  charge  that  he  had  received  money  as  trustee  and 
had  an  account  to  settle,  it  is  evidently  a  proceeding  directly  at 
variance  with  the  former,  and  contradictory  to  the  decree  of  the 
court.  The  principle  is  now  so  familiar  as  almost  to  render  it 
"superfluous  to  refer  to  it,  that  the  decree  of  a  court  of  competent 
r*1fifiT  jurisdiction,  on  a  matter  within  that  jurisdiction,  cannot 
J  *  be  controverted  by  a  proceeding  in  another  court.  Here 
the  proceeding  in  the  Orphans'  Court  brings  directly  in  question, 
matters  already  heard  and  adjudicated  in  the  Court  of  Common 
Pleas :  and  therefore  the  proceeding  in  the  Orphans'  Court  was 
in  this  respect  erroneous. 

Decree  reversed. 

Cited  by  Counsel,  4  Wharton,  181 ;  4  Barr,  302  ;  5  Harris,  125. 
Cited  by  the  Court,  4  Watts  &  Sergeant,  435 ;  9  Barr,  425  ;  2  Jones,  336  ; 
5  Wright,  178 ;  2  Ashmead,  479. 


[PHILADELPHIA,  JANUARY  22,  1836.] 
SLETOK  against  ORAM. 

IN   ERROR. 

A  discharge  of  the  person  of  a  debtor,  under  the  insolvent  laws  of  this 
Commonwealth,  does  not  prevent  the  operation  of  the  statute  of  limita- 
tions against  the  claim  of  the  creditor. 

UPON  a  writ  of  error  to  the  Court  of  Common  Pleas  of  North- 
ampton County,  it  appeared  that  Davis  Oram,  (for  the  use  of 
John  Carey,  Jr.,)  had  brought  an  action  on  the  case  against  John 
Sletor,  to  April  term,  1833.  The  original  writ  was  issued  on 
the  2d  of  April,  1833.  The  plaintiff  declared  in  indebitattis  as- 
sumpsit,  for  goods  sold  and  delivered,  and  the  defendant  pleaded 
non  asgumpsit,  and  payment  with  leave,  &c.,  and  non  assumpsit 
infra  sex  anno*  ;  upon  which  pleas  issues  were  joined. 

The  case  came  on  for  trial  in  the  court  below,  on  the  26th  of 
January,  1835,  when  the  plaintiff,  after  proving  the  sale  and  de- 
livery of  certain  goods  to  the  defendant,  on  the  8th  of  June, 
1816,  gave  in  evidence  the  record  of  certain  proceedings  in  the 
Court  of  Common  Picas  of  Northampton  County,  by  which  it 


1835.]  OF  PENNSYLVANIA.  106 

(Sletor  v.  Oram.) 

appeared  that  on  the  27th  of  January,  1821,  John  Sletor  pre- 
sented his  petition  to  the  said  court,  praying  for  the  benefit  of 
the  insolvent  laws  of  the  state  ;  and  that  on  the  17th  of  Febru- 
ary, 1821,  he  was  discharged  according  to  law  ;  having  previously 
executed  an  assignment  to  William  Barnet  and  John  Carey,  trus- 
tees appointed  by  the  court.  The  .trustees  so  appointed  having 
declined  acting,  William  Innes  was  appointed  in  their  place  on 
the  18th  of  April,  1821.  In  the  month  of  July,  1823,  Barnet 
and  Carey,  the  trustees  first  appointed,  assigned  the  trust  prop- 
erty to  Innes,  who,  on  the  21st  of  October,  in  that  year,  executed 
the  bond  required  by  law.  But  it  did  not  appear  that  the  surety 
was  approved  of  by  the  court.  In  the  list  of  creditors  attached 
to  his  petition  for  the  benefit  of  the  insolvent  laws,  Sletor  in- 
cluded the  debt  due  to  Oram.  It  was  admitted  that  *the  ^^  ft_  , 
real  estate  returned  by  Sletor,  in  his  petition,  was  sold  "- 
by  the  sheriff,  after  his  discharge,  upon  judgments  obtained  prior 
thereto. 

Under  these  circumstances,  the  counsel  for  the  plaintiff  re- 
quested the  court  to  charge  the  jury,  "  that  the  statute  of  limita- 
tions did  not  protect  the  defendant  in  this  case,  he  having  been 
discharged  under  the  insolvent  laws  of  this  Commonwealth  ;  and 
the  assignees  appointed  by  the  court  not  having  acted  or  become 
qualified  ;  and  the  real  estate  of  the  defendant  having  been  sold 
under  previous  judgments." 

In  answer  to  which,  the  court  charged  the  jury  that  the  statute 
did  not  protect  the  defendant.  "  That  under  the  provisions  of  the 
insolvent  laws,  and  the  construction  given  to  them  by  the  Supreme 
Court,  in  the  case  of  Feather's  Appeal,  (1  Penn.  Rep.  332,)  the 
statute  of  limitations,  as  such,  must  be  laid  out  of  view  in  this 
case  ;  and  that  it  did  not  apply  in  cases  generally,  where  there 
has  been  a  discharge  under  the  insolvent  laws  now  in  force  in  this 
Commonwealth,  although  a  presumption  of  payment  may  arise 
from  lapse  of  time,  which  would  protect  the  defendant." 

In  this  court  two  errors  were  assigned,  but  the  only  point  in- 
sisted on,  was  the  direction  given  by  the  court  below,  on  the  sub- 
ject of  the  statute  of  limitations. 

Mr.  Brooke,  for  the  plaintiff  in  error,  having  stated  the  ques- 
tion, was  stopped  by  the  court. 

Mr.  Porter,  for  the  defendant  in  error.  The  thirteenth  section 
of  the  act  of  the  26th  of  March,  1814,  provides  that  "  notwith- 
standing the  discharge  of  any  debtor  by  virtue  of  this  act,  all  and 
every  debt  and  debts,  due  and  owing  from  such  debtor,  and  all 
and  every  judgment  had  and  taken  against  him,  shall  stand  and 
be  good  and  effectual  in  law,  to  all  intents  and  purposes,  against 


107  SUPREME  COURT  [Dec.  Term, 

(Odenwelder  v.  Odeuwelder.) 

the  lands,  tenements,  hereditaments,  goods  and  chattels  of  such 
debtor,  which  he  or  any  person  in  trust  for  him  at  the  time  of  his 
discharge  shall  have  had,  or  at  any  time  thereafter  shall  or  may 
be  in  any  way  seized  or  possessed  of,  interested  in,  or  entitled  to, 
in  law  or  equity,  &c. — and  it  shall  be  lawful  to  take  out  a  new 
execution,"  &c.  The  lauguage  of  the  act  is  general ;  and  being 
subsequent  to  the  act  of  limitations,  must  be  taken  to  abrogate  it, 
so  far  as  respects  insolvents. 

There  are  many  cases  in  which  the  statute  is  held  to  be  sus- 
pended, although  they  are  not  in  the  number  of  exceptions.  1 
Wash.  (Virg.)  Rep.  147  ;  Munford's  Dig.  408,  PI.  7 ;  Diechman 
v.  The  Northampton  Bank,  (1  Rawle,  54 ;)  Power  v.  Holbnan, 
(2  Watts,  218;)  Thompson  v.  MlGaw,  (2  Watts,  161.)  In 
Feather's  Appeal,  (1  Penn.  Rep.  332 ;)  the  judge  who  delivered 
r*1ft81  ^ie  °Pmi°n  °f  the  court,  *seemed  to  consider  the  statute 
J  of  limitations  out  of  the  way  in  the  present  case. 

PER  CURIAM.  The  remark  made  by  the  judge  who  delivered 
the  opinion  of  the  court,  in  the  case  of  Feather's  Appeal,  was  a 
mere  suggestion.  The  point  .was  not  considered  by  the  court,  as  it 
was  not  necessarily  involved  in  the  determination  of  that  case.  We 
have  since  decided,  after  argument,  in  two  cases,  (  Crest  v.  Heis- 
kell,*  at  the  last  term  in  Philadelphia,  and  a  case  at  Pittsburgh,^ 
that  a  discharge  under  the  insolvent  laws,  does  not  prevent  the 
statute  of  limitations  from  running  against  the  creditor.  The 
question  must  now  be  considered  at  rest. 


Judgment  reversed. 


Cited  by  Counsel,  3  Wharton,  148  ;  4  Id.  277. 


[PHILADELPHIA,  JANUARY  22,  1836.] 
ODENWELDER  against  ODENWELDER. 

IN    ERROR. 

1.  In  an  action  of  account-render  between  partners,  a  reference  was  made 
under  the  act  of  1705,  to  three  persons,  who  were  "to  state  an  account, 
and  hear  and  determine  all  matters  in  variance  between  the  parties  in  the 
*utY."     Held,  that  it  was  not  a  valid  exception  to  the  report  of  referees, 
that  it  included  matters  not  properly  cognizable  in  an  action  of  account- 
render. 

2.  It  is  not  a  valid  exception  to  a  report  of  referees,  in  an  action  of  account- 
render  between  partners,  that  they  have  not  disposed  of  certain  of  the 
partnership  effect*,  or  of  the  outstanding  debts  due  to  the  firm,  but  left 
them  for  future  distribution. 

*5  Rawle,  134.  f  Schonberger  t.  Adams,  4  Watts,  430. 


1835.]  OF  PENNSYLVANIA.  108 

(Odenwelder  c.  Odenwelder.) 

UPON  a  writ  of  error  to  the  Court  of  Common  Pleas  of  North- 
ampton county,  the  case  was  thus  : 

An  action  of  account-render,  was  instituted  by  summons  in  the 
court  below,  to  January  Term,  1833,  No.  57,  in  which  Michael 
Odenwelder  was  plaintiff,  and  Jacob  Odenwelder  was  defendant 
and  in  which  no  declaration  was  filed.  On  the  return  of  the  writ, 
to  wit :  on  the  2d  of  February,  A.  D.  1833,  the  action  was  re- 
ferred under  the  act  of  1705,  "to  Jefferson  K.  Heckman,  W.  L. 
Sebring,  and  Samuel  Yohe,  or  any  two  of  them,  who  are  to  state 
an  account,  and  hear  and  determine  all  matters  in  variance  be- 
tween the  parties  in  this  suit,  and  make  report  to  the  then  next 
or  any  subsequent  term."  The  agreement  to  refer  was  not  in 
writing,  but  was  entered  into  in  open  court  in  term  time. 

*  The  cause  depended  before  the  referees  until  the  r*inq-i 
17th  day  of  October,  1833,  when  they  made  the  follow- 
ing report :  "We,  the  referees  above  named,  after  a  careful  and 
deliberate  examination  of  all  the  books,  papers  and  vouchers  sub- 
mitted to  us,  and  upon  hearing  the  parties,  their  proofs  and  alle- 
gations, do  find  that  there  is  due  to  the  plaintiff  from  Jacob  Oden- 
welder the  defendant,  eleven  hundred  forty -nine  dollars  and  eleven 
cents,  as  per  statements  accompanying  this  report.  Witness  our 
hands  this  16th  day  of  October,  A.  D.  1833." 

"  N.  B.  The  kilns  and  sheds  belonging  to  the  firm,  and  the 
outstanding  debts  due  to  the  firm  at  the  time  this  suit  was  insti- 
tuted, were  not  taken  into  consideration  by  the  referees,  and  con- 
stitute no  part  of  the  report,  and  are  subjects  for  distribution  here- 
after." 

"  Signed  by  the  referees." 

Statements  annexed  to  the  report. 

Michael  Odenwelder ,  in  account  with  the  firm  of  J.  Sf  M.  Oden- 
welder. 

Dr.  As  per  statement  A $15,107  19 

Cr.  As  per        do.  ...       $13,264  86 

Balance  due  the  firm.       .         .  1,842  33 

-  $15,107  19 

Jacob  Odenwelder,  in  account  with  the  firm  of  J.  $•  M.  Oden- 
welder. 

Dr.  As  per  statement  B.  .         .         $1,419  35 

Cr.  As  per      .do.  .  $2,380  51 

Balance  due  to  Jacob  Odenwelder,          960  66 

$2,380  51 


109  SUPREME  COURT  [Dec.  Term, 

(Odenwelder  t>.  Odenwclder.) 

Jacob  Odenwelder ,  tn  account  with  Michael  Odenwelder  indi- 
vidually. 

Dr.  As  per  statement  C.        .        ,        .         .  $2,583  66 

Cr.  As  per        do.         .         .         .          $     33  07 
Balance,  .         .         .          $2,550  60 

$2,583  66 


Jacob  Odenwelder  is  indebted  to  Michael  on  account,  $2,550  60 
Half  of  balance  due  the  firm  from  Michael,  $  921  16 
Do.         due  Jacob  from  the  firm,          480  33 
Balance  due  from  Jacob  to  Michael,         .      1,149  11 

$2,550  60 


Balance,  as  above  stated,         .         .     $1,149  11 

JEFFERSON  K.  HECKMAN, 
W.  L.  SEEKING, 
SAMUEL  YOHE. 
October  16,  1833.  Referees. 

* 

f*1101  *The  statement  A,  referred  to  as  containing  the  par- 
J  ticulars  of  the  account  of  Michael  Odenwelder,  with  the 
firm  of  J.  &  M.  Odenwelder,  which  was  very  voluminous,  charged 
Michael  with  cash  received  from  sundry  persons,  for  bricks  sold 
by  the  firm,  and  credited  him  with  cash  paid  to  the  hands  in 
the  yard,  and  for  articles  fumished  for  the  use  of  the  yard 
during  the  partnership,  and  was  exclusively  a  partnership  ac- 
count. 

The  statement  B,  which  was  referred  to  as  containing  the  par- 
ticulars of  the  account  of  Jacob  Odenwelder,  with  the  firm  of  J. 
&  M.  Odenwelder,  charged  Jacob  in  the  same  manner,  and  cred- 
ited him  with  expenses,  boarding  hands,  &c.,  hauling  bricks  from 
yard,  casli  paid  for  wood  for  the  yard,  &c.  and  was  also  exclu- 
sively a  partnership  account. 

The  statement  C.  referred  to  as  containing  the  account  of  Jacob 
Odenwelder  with  Michael  Odenwelder,  was  exclusively  a  private 
account,  and  charged  Jacob  with  merchandize  got  by  him  ancj  his 
family,  out  of  Michael's  store,  lottery  tickets,  cash  paid  him  and 
his  family,  cash  paid  to  other  persons  for  Jacob  &c.,  and  credited 
him  with  cash  received  for  him  from  sundry  persons,  prize  tickets, 
in  lotteries,  &c.  In  this  account,  Jacob  was  charged  with  Mrs. 
Michael  Odenwelder's  account  against  his  wife  and  family  for  mil- 
linery work,  &c.  done  for  them. 

The  report  of  referees  was  filed  on  the  17th  of  October,  1888  ; 
and  on  the  19th  of  the  same  month,  was  read  in  open  court,  and 
judgment  nisi  thereon  rendered,  and  leave  given  to  file  excep- 


1835.]  OF  PENNSYLVANIA.  110 

(Odenwelder  v.  Odenwelder. ) 

tions  thereto,  by  the  2d  day  of  November  then  next.  On  the 
1st  day  of  November,  1883,  the  defendant  by  his  counsel  filed 
several  exceptions  ;  of  which  the  following  are  the  only  ones,  in 
the  decision  of  which  error  was  assigned. 

"  first  Exception.  That  the  award  does  not  cover  all  matters 
in  variance  between  the  parties  in  the  action. 

"  Second  Exception.  That  the  award  does  great  injustice  to 
the  defendant,  in  introducing  into  the  account  and  award  in  this 
action,  the  individual  account  of  Michael  Odenwelder  against 
Jacob  Odenwelder,  and  thus  showing  a  balance  due  by  him  to 
the  plaintiif ;  when  in  fact,  on  the  settlement  of  the  partnership 
accounts,  which  alone  were  subject  of  the  action  and  submission, 
the  plaintiff  would  fall  largely  in  debt. 

"  Third  Exception.  That  the  referees  erred  in  not  stating 
a  particular  account  of  the  profits  and  losses  of  the  firm  ;  and  in 
the  situation  of  the  accounts  as  stated  by  the  referees,  it  is 
impossible  to  know  whether  the  partnership  were  a  profitable  or 
losing  concern  to  the  parties." 

On  the  2d  day  of  February,  1834,  the  exceptions  were  dis- 
missed, and  the  report  was  confirmed,  whereupon  this  writ  of 
error  was  sued  out. 

*In  this  court  the  following  errors  were  assigned:          r*111~| 

"  First.     That  the  court  erred  in  dismissing  the  ex- 
ceptions, and  confirming  the  report  of  the  referees,  there  being 
on  the  face  of  the  report  plain  error,  and  excess  of  jurisdiction. 

"  Second.  The  court  should  have  set  aside  the  report,  for 
reasons  stated  in  the  first  exception,  the  first  specification  of  the 
second  exception,  and  the  third  exception." 

Mr.  Brooke  for  the  plaintiff  in  error. 

The  question  here  is,  have  the  referees  stated  such  an  account 
and  made  such  a  report,  as  auditors  in  account-render  for  whom 
they  were  substituted,  are  required  to  do.  1.  They  have  not 
stated  what  the  partnership  effects  were ;  they  should  have  set 
them  forth  with  their  valuation,  and  ordered  a  sale.  '  Gow  on 
Partnership,  p.  3  ;  Collyer  on  Partnership,  p.  167.  Segourney 
v.  Mann,  (7  Conn.  Rep.  324.)  [HUSTON,  J.  It  has  never  been 
held  that  our  courts  possess  all  the  powers  of  a  Court  of  Chan- 
cery. Has  a  sale  ever  been  decreed  by  a  Court  of  Common 
Pleas,  in  a  case  of  goods  held  in  partnership?]  In  Geary  v. 
Cunningham,  (10  Serg  &  Rawle,  302,)  tt  was  said  by  Gibson, 
J.,  that  arbitrators  in  account-render,  have  powers  as  extensive 
as  those  of  a  chancellor,  and  may  make  a  special  award  in  the 
nature  of  a  decree,  adapted  to  the  particular  circumstances  of 
the  case.  [HUSTON,  J.  Have  you  any  authority  to  show  that 
a  sale  may  be  ordered  by  auditors  or  arbitrators  ?]  I  admit  that 

VOL.  i. — 8. 


Ill  SUPREME  COURT  {Dec.  Term, 

(Odenwelder  c.  Odenwelder. ) 

there  is  no  express  authority  ;  but  the  language  of  the  court  on 
several  occasions,  seems  to  countenance  the  idea  that  they  pos- 
sess it.  This  award  is  not  sufficiently  final.  Caldwcll  on  Arbi- 
trations, p.  214,  referring  to  16  East,  58  ;  7  Mod.  849 ;  s.  c. 
Willes,  268. — 2d.  The  referees  have  adjudicated  upon  matters 
which  were  not  the  subject  of  an  action  of  account-render  and 
which  were  never  intended  to  be  submitted  to  them.  [ROGERS, 
J .  The  submission  is  of  "  all  matters  in  variance  between  the 
parties  in  this  suit,"  which  certainly  gave  the  referees  cogni- 
zance of  all  subjects  of  difference.]  This  was  not  our  intention. 
[ROGERS,  J.  I  take  it  that  you  are  bound  by  the  entry  on  the 
record,  whatever  your  intentions  may  have  been.]  The  court 
will  look  at  the  nature  of  the  action  and  judge  of  the  meaning 
and  intention  of  the  submission  by  that.  Could  referees  in  ac- 
count-render, take  cognizance  of  a  question  of  title  to  real  estate, 
or  damages  in  slander?  3.  The  referees  ought  to  have  stated 
a  particular  account  of  the  profit  or  losses  of  the  partnership. 
This  is  important  for  many  purposes ;  but  the  award  is  silent  in 
respect  to  it. 

Mr.  Porter,  for  the  defendant  in  error,  cited  Kline  v.  Guthart, 
(2  Penn.  Rep.  490,)  that  the  objections  to  the  award  could  not 
F*1191     k°  *  taken  in  a  Court  of  Error.     The  court  declined 
hearing  him  on  the  exceptions  to  the  award. 

Mr.  Tilyhmam,  for  the  plaintiff  in  error  contended,  that  where 
the  objections  to  the  award  appeared  on  the  face  of  it,  this 
court  would  not  refuse  to  take  cognizance  of  the  case.  In 
Soxman  v.  Soxman,  (3  Penn.  Rep.  44,)  this  court  entertained  a 
writ  of  error  upon  an  award,  and  reversed  the  judgment. 
[GiBSON.  C.  J.  JSo  doubt  it  may  be  so,  for  errors  appearing  on 
the  face  of  the  award.]  Here,  we  say  the  errors  are  apparent. 
It  is  said,  that  we  agreed  to  submit  all  matters  in  variance 
"  between  the  parties."  The  word  parties,  must  be  taken  to 
refer  to  the  action  of  account-render,  and  to  be  limited  by  the 
scope  of  that  action.  The  act  of  30th  March,  1821,  requires 
an  account  to  be  stated.  There  can  be  but  one  action  of  ac- 
count-render for  the  same  period  of  time  ;  yet  this  award  leaves 
open  matters  for  another  action. 

PER  CURIAM.  There  is  no  weight  in  any  of  the  exceptions 
taken  in  this  case.  The  parties  selected  their  tribunal ;  and  if 
the  terms  of  the  submission  are  larger  than  was  contemplated 
by  the  plaintiff  in  error,  he  should  have  applied  to  the  Court  of 
Common  Pleas  to  correct  the  supposed  mistake.  Certainly,  we 
cannot  enter  into  that  question  here.  The  report  of  the  referees 


1835.]  OF  PENNSYLVANIA.  112 

(Bailey  v.  King.) 

appear  to  be  sufficiently  certain  and  final.  If  they  have  not  clone 
with  the  partnership  effects  what  the  plaintiff  in  error  desires,  it 
is  because  the  power  to  order  a  sale,  is  not  possessed,  at  present, 
by  any  legal  tribunal  of  this  commonwealth. 

Judgment  affirmed. 
Cited  by  Counsel,  7  Watts,  359. 


[* PHILADELPHIA,  JANUARY  22,  1838.]  [*118] 

BAILEY  against  KING. 

IN    ERROR. 

An  apprentice  cannot  maintain  an  action  against  his  master  to  recover  com- 
pensation for  extra  work,  done  by  him  for  the  latter,  during  the  term  of 
the  apprenticeship :  although  the  work  was  done  upon  the  express  prom- 
ise of  the  master  to  pay  for  it. 

ERROR  to  the  Court  of  Common  Pleas  for  the  City  and  County 
of  Philadelphia,  to  remove  the  record  of  an  action  in  which 
Robert  King,  by  his  next  friend,  Hermanus  King,  was  plaintiff, 
and  Lydia  R.  Bailey  was  defendant. 

The  action  was  originally  instituted  before  an  alderman,  who 
gave  judgment  in  favor  of  the  plaintiff,  from  which  the  defendant 
appealed  to  the  Court  of  Common  Pleas.  The  plaintiff  having 
filed  a  declaration  in  indebitatus  assumpsit  for  work  and  labor 
done,  the  defendant  pleaded  non  assumpsit  and  payment,  &c. ; 
and  the  cause  came  on  for  trial  on  the  6th  of  February,  1834. 
It  appeared  in  evidence,  that  Robert  King,  the  plaintiff,  was 
an  indented  apprentice  of  Mrs.  Bailey,  the  defendant,  to  learn 
the  art  and  business  of  printing;  that  the  defendant  had  been 
in  the  habit  of  making  a  pecuniary  allowance  to  her  apprentices 
for  all  the  work  done  by  them  beyond  a  certain  amount:  that 
she  had  promised  the  plaintiff  to  give  him  a  certain  sum  per 
week  during  his  good  behavior ;  and  that  she  had  withheld  the 
promised  remuneration,  on  the  ground  that  he  had  misbehaved 
himself. 

The  judge,  in  his  charge  to  the  jury,  said,  "the  master  of  an 
apprentice  is  entitled  to  those  earnings  which  flow  from  the  ordin- 
ary occupation  and  industry  of  the  apprentice,  in  the  way  of  his 
business.  But  if  the  master  promise  that  in  consideration  of  the 
apprentice  devoting  extra  time,  or  •  performing  extraordinary  ser- 
vices, which  do  not  interfere  with  the  profits  to  which  the  master 


113  SUPREME  COURT  [Dec.  Term, 

(Bailey  r.  King.) 

may  be  legitimately  entitled,  he  will  pay  the  apprentice  for  such 
over  or  extra  service,  such  promise  will  be  binding  on  the  master, 
and  the  apprentice  may  maintain  an  action  for  the  breach  of  it; 
but  the  promise  must  be  express,  and  the  master  may  annex  such 
conditions  as  he  may  think  proper,  and  revoke  the  agreement, 
upon  notice  to  the  apprentice.  If,  therefore,  you  believe  that 
the  defendant  made  an  unconditional  promise  to  pay  the  plaintiff 
for  his  extra  services,  and  are  satisfied  that  he  performed  such 
service,  your  verdict  should  be  for  the  plaintiff,  for  such  amount 
as  he  has  proved  to  be  due  to  him  under  the  agreement.  But,  it 
is  alleged  by  the  defendant,  that  if  any  agreement  was  made,  it 
was  on  condition  that  the  plaintiff  should  behave  himself  well. 
Such  a  condition  would  not  only  be  legal,  but  laudable ;  and  if 
r*1141  Broken  by  the  apprentice,  *he  would  forfeit  his  right  to 
-•  recover ;  though  the  master  should  not  be  permitted,  for 
any  slight  breach  of  decorum,  to  claim  a  forfeiture  for  consider- 
able past  services.  But  we  cannot  agree  with  the  counsel  for  the 
plaintiff,  that  staying  out  all  night  contrary  to  the  express  direc- 
tion of  the  master,  and  other  charges  alleged  against  the  plaintiff, 
are  of  so  trifling  a  nature,  as,  if  proved,  not  to  incur  a  forfeiture. 
The  master  is  guardian  of  the  morals  of  his  apprentice,  and  is 
bound  to  watch  over  them  as  he  would  over  those  of  his  children. 
If,  therefore,  you  believe  the  agreement  was  a  conditional  one, 
and  the  condition  was  not  performed  by  the  apprentice,  the  de- 
fendant was  right  in  withholding  payment,  and  the  plaintiff  should 
not  recover." 

The  plaintiff's  counsel  excepted  to  this  charge ;  and  having  re- 
moved the  record  to  this  court,  assigned  for  error: 

1.  That  the  judge  erred  in  stating  to  the  jury  that  this  action 
could  be  maintained  against  the  defendant ;  she  being  the  mistress, 
under  an  indenture  of  apprenticeship,  of  the  plaintiff  below. 

2.  That  the  judge  erred  in  admitting  in  evidence  the  memoran- 
dum book  of  the  plaintiff  below,  as  a  book  of  original  entries,  to 
prove  work  and  labor  done  by  him. 

The  first  point,  only,  was  insisted  upon  in  the  argument. 

Mr.  OwenSj  for  the  plaintiff  in  error.  This  is  an  action  brought 
by  an  apprentice,  during  the  continuance  of  the  apprenticeship, 
against  his  master,  upon  an  alleged  promise  to  pay  for  overwork. 
The  case  is  of  the  first  impression,  and  is  sanctioned  .neither  by 
reason  nor  authority.  He  cited  Abbott  on  Shipping,  p.  439, 
440;  Peake'sN.  P.  C.  72. 

Mr.  H.  ffubbell,  contra,  argued  that  there  Avas  nothing  in  the 
relation  between  master  and  apprentice  under  our  laws,  which 
forbade  a  contract  like  this.  There  is  a  distinction  between  the 


1835.]  OF  PENNSYLVANIA.  114 

(Bailey  v.  King.) 

case  of  an  apprentice  and  that  of  a  servant.  Altemus  v.  Ely, 
(3  Rawle,  305.)  The  legal  existence  of  the  apprentice  is  not 
suspended  as  in  case  of  a,  feme  covert.  The  indenture  of  appren- 
ticeship binds  both  parties,  in  respect  to  the  covenants  contained 
in  it ;  but  beyond  that,  it  leaves  them  free  agents.  He  also  cited 
Tlie  Commonwealth  v.  Vanlear,  (1  Serg.  &  R.  1)  ;  Mason  v. 
The  Ship  Blaireau,  (2  Cranch,  270.) 

The  opinion  ttf  the  court  Avas  delivered  by 

GIBSON,  C.  J. — It  is  conceded  that  extra-work  by  an  appren- 
tice, is  not  a  consideration  to  raise  an  implied  promise ;  but  it  is 
said  to  be  sufficient  to  support  an  express  one.  But  if  the  master 
be  *chargeable  at  all,  why  not  on  a  common  count,  as  in  p^-  ^  ?-. 
ordinary  cases  of  work  and  labor  done  ?  It  may  per-  L 
haps  be,  that  without  an  agreement  to  define  the  portion  of  the 
work  which  belongs  to  the  master  by  force  of  the  indentures, 
there  could  be  no  such  thing  as  extra  work.  It  is  certain  that  an 
apprentice  stands  not  on  the  ordinary  footing  of  a  servant;  but 
for  that  very  reason  it  becomes  a  question  of  grave  concern, 
whether  the  enforcement  of  such  an  agreement,  by  legal  means, 
be  not  forbidden  by  considerations  of  policy.  In  many  respects, 
the  master  is  in  the  place  of  a  parent.  He  is  treated  as  such  in 
the  statutes  to  prevent  the  clandestine  marriage  of  minors ;  and 
his  relation  to  the  apprentice,  if  not  strictly  parental,  is  at  least 
pupillary.  Now  these  promises  are  but  incitements  to  industry, 
and  those  virtues  which  are  ever  found  in  its  train.  By  the 
proofs  in  the  cause,  it  appears  that  the  conditions,  by  the  obser- 
vance of  which  the  reward  was  to  be  gained,  were  not  merely  the 
performance  of  additional  labor,  but  also  regular  attendance  at 
church,  and  the  keeping  of  regular  hours  at  home — matters 
intended  to  benefit,  not  the  mistress,  for  she  was  to  pay  for  the 
increase  of  production,  but  the  apprentice  himself,  in  the  preser- 
vation of  his  morals,  and  the  improvement  of  his  professional 
skill.  Can  it  be  that  these  observances  may  be  made  the  founda- 
tion of  a  legal  demand  ?  Declare  them  to  be  subjects  of  judicial 
cqgnizance,  and  all  inducements  to  propose  them  will  cease.  No 
schoolmaster,  tutor,  or  disciplinarian,  in  whatever  profession  or 
pursuit,  will  recur  to  premiums  for  diligence,  at  the  peril  of  a 
lawsuit.  From  the  very  nature  of  a  premium,  the  proposer  of  it 
is  to  be  the  arbiter  and  awarder  of  it,  where  another  is  not  desig- 
nated. Will  it  be  credited,  that  the  defendant  would  have  held 
out  this  salutary  incentive  to  employment,  during  hours  that 
might  have  otherwise  been  given  to  vicious  indulgence,  had  she 
thought  she  was  contracting  a  legal  obligation  ?  Had  she  done 
so,  she  would,  at  the  same  moment,  have  ceased  to  be  the  mis- 
tress of  her  shop.  The  case  of  Mason  v.  The  Ship  Blaireau,  2 


115  SUPREME  COURT  [Dec.  Term, 

(Ingham  v.  Snyder.) 

Cranch,  270,  is  pressed  upon  us  to  show  that  the  master  has  not 
a  right  to  the  extraordinary  earnings  of  his  apprentice ;  which, 
however,  were  explained  there,  to  he  such  as  are  produced  by  his 
labor  when  not  employed  in  his  master's  service.  We  have  a  very 
different  case.  Besides,  the  question  had  regard  to  the  rights  of 
the  apprentice  as  regulated  by  the  indentures,  and  not  to  the 
validity  of  a  collateral  promise,  drawn  into  question  by  considra- 
tions  of  policy.  We  are  entirely  satisfied  that,  not  only  pnblic 
expedience,  but  justice  between  the  parties,  forbids  it  to  be  made 
the  foundation  of  an  action 

Judgment  reversed. 


[*116]  ['PHILADELPHIA,  JANUARY  22,  1836.] 

INGHAM  against  SNYDER. 

APPEAL. 

1.  A  fieri  facias  having  been  issued  and  levied  on  personal  property,  the 
plaintiff  issued  another  writ  of  fieri  facias  and  delivered  it  to  the  sheriff, 
but  caused  it  to  be  withdrawn  before  any  proceedings  were  had  under  it. 
Held,  that  this  was  not  an  abandonment  of  the  preceding  levy. 

2.  It  seems,  that  the  intervention  of  a  term,  between  the  teste  and  return  of 
judicial  process,  is  not  an  irregularity. 

Tins  was  an  appeal  by  Samuel  Yardley,  from  a  decree  of  the 
Court  of  Common  Pleas  of  Bucks  County,  in  the  distribution  of 
the  proceeds  of  certain  personal  property,  sold  by  virtue  of  a 
writ  of  venditioni  exponas,  in  a  suit  wherein  Samuel  D.  Ingham 
and  John  II.  Ingham  were  the  plaintiffs,  and  M.  H.  Snyder  was 
defendant. 

In  the  court  below  there  were  three  claimants  of  the  fund, 
viz.: 

S.  D.  and  John  II.  Ingham,  the  above  named  plaintiffs,  Samuel 
Yardley,  Jr.,  the  appellant,  and  Stephen  Brock,  another  execu- 
tion creditor. 

1.  Samuel  D.  Ingham  and  John  II .  Ingham  entered  judgment 
against  the  defendant,  M.  II.  Snyder,  on  a  bond  with  warrant  of 
attorney,  dated  February  12th,  1834,  in  the  penal  sum  of  $723  68, 
conditioned  for  the  payment  of  $361  84.  The  following  execu- 
tions were  issued  upon  this  judgment: 

February  12th,  1835.  Fieri  facias  issued  to  April  term.  Real 
debt  $361  84.  Interest  from  February  12th,  1834.  Sheriff's 
return  "stayed  by  order  of  plaintiff's  attorney."  Alias  fieri 


1835.]  OF  PENNSYLVANIA.  116 

(Ingham  v.  Snyder.) 

facias  issued  April  28th,  to  Septemher  term,  1834,  No.  1 ;  which 
was  returned,  "stayed  by  order  of  plaintiff's  attorney."  Pluries 
fieri  facias  issued  September  8th,  1834,  to  December  term, 
1834 — upon  which  the  sheriff  originally  returned,  "  Rec'd  $15 
on  account,  and  levied  upon  goods  as  per  inventory,  upon  file  in 
the  sheriff's  office,  and  stayed  by  plaintiff's  attorney."  This 
return  was  afterwards,  on  motion,  amended  so  as  to  read,  "  Rec'd 
$15  on  account,  and  levied  upon  goods  as  per  inventory  annexed." 
The  inventory  annexed,  exhibited  household  furniture  and  print- 
ing materials. 

The  affidavit  filed  by  the  sheriff,  upon  his  application  to  amend 
the  return  of  the  writ,  was  as  follows  : 

"  William  Field,  sheriff,  being  duly  affirmed  according  to  law, 
deposes  and  says,  that  he  had  no  orders  to  stay  the  above  execu- 
tion, *unless  the  defendant  paid  the  interest  due  upon  r*-M7T 
the  judgment,  under  which  the  above  execution  issued, 
and  also  obtained  from  Stephen  Brock,  another  execution  creditor 
of  the  defendants  an  agreement  to  waive  any  priority  of  lien  he 
might  obtain.  And  that  the  said  defendant  did  not  pay  the  said 
interest,  or  obtain  the  said  agreement  contrary  to  his  promise, 
which  was  relied  upon  by  the  sheriff,  and  that  he  the  said  sheriff 
returned,  'levied  upon  goods  as  per  inventory,  on  file  in  the 
sheriff's  office,  and  stayed  by  plaintiff's  attorney,'  by  mistake,  as 
the  facts  did  not  warr.ant  it ;  but  should  have  returned  the  execu- 
tion 'levied  goods,  as  per  inventory  annexed.' 

Affirmed  and  subscribed  in  open  court,  December  12th,  1834. 
(Signed)  WILLIAM  FIELD,  Sheriff. 

CHARLES  H.  MATHEWS,  Proth'y." 

A  second  pluries  fieri  facias,  issued  to  February  term,  1835. 
This  writ  was  endorsed  by  the  sheriff,  "  came  to  hand  December 
8th,  1834,  at  seven  o'clock."  It  was  afterwards  withdrawn  from 
the  sheriff  by  the  plaintiff's  attorney,  and  no  proceedings  had 
under  it.  The  plaintiff  then  issued  a  venditioni  exponas  to  sell 
goods,  returnable  to  February  term,  1835.  The  prcecipe  was 
dated  and  filed  on  the  12th  of  December.  There  was  no  endorse- 
ment by  the  sheriff  when  the  venditoni  exponas  came  to  hand  ; 
the  return  was,  "sold  goods  to  the  amount  of  $502  09  ;"  and  it 
was  accompanied  with  an  inventory  of  the  goods  levied  upon. 
These  were  all  the  proceedings  had  upon  Ingham's  judgment, 
until  the  question  arose  as  to  the  distribution  of  the  assets  in  the 
sheriff's  hands. 

2.  On  the  8th  of  December,  1834,  Samuel  Yardley,  Jr.,  en- 
tered judgment  against  the  same  defendant,  on  a  note  dated  the 
1st  day  of  January,  1834— for  the  sum  of  $215  56.  On  this 
judgment,  a  fieri  facias  issued  the  same  day  to  February  term, 


117  SUPREME  COURT  [Dec.  Term, 

(Ingham  v.  Snyder.) 

1835.  This  writ  was  endorsed  "  came  to  hand  December  8th, 
at  seven  o'clock,  twenty-five  minutes,  A.  M. ;"  and  the  return 
made  hy  the  sheriff,  was  as  follows  :  "  sold  goods  upon  venditioni 
exponas,  No.  9,  to  this  term,  to  the  amount  of  $502  09."  The 
writ  was  tested  the  8th  day  of  December,  1834  ;  and  annexed  to 
it,  as  returned  by  the  sheriff,  was  the  following  order  from  the 
plaintiff's  attorney. 

SAMUEL  YARDLEY,  JR.  ) 

vs.  |  Fi.  Fa.  to  February  term,  1834. 

M.  H.  SNYDER.  ) 

WILLIAM  FIELD,  Esq., 

High  Sheriff  of  Bucks  County. 
SIR: 

I  am  instructed  by  the  plaintiff  to  direct  you  to  levy  and  sell, 
without  any  delay,  under  the  above  execution. 

(Signed)  THO.MAS  Ross, 

Plaintiff**  Attorney. 

T*1 1 81  *  Notice  was  also  given  by  the  plaintiff,  Samuel  Yard- 
J  ley,  Jr.,  of  seventy-five  dollars,  rent  due  him  from  the 
defendant. 

3.  Stephen  Brock,  another  creditor  of  the  defendant,  entered 
judgment  against  him  December  9th,  1833$  upon  a  bond,  in  the 
penal  sum  of  $1000,  conditioned  for  the  payment  of  $500.  A 
fieri  facias  issued  on  this  judgment  on  the  12th  of  February. 
1834,  to  April  term,  1834,  which  was  returned,  "stayed  by 
order  of  the  plaintiff's  attorney."  An  alias  fieri  facias  issued 
on  the  28th  of  April,  to  September  term,  1834 — which  was  re- 
turned "stayed  by  order  of  plaintiff's  attorney."  A  pluries 
fieri  facias  issued  on  the  8th  of  September,  1834,  to  December 
term,  1834,  which  was  returned  "levied  upon  goods  upon  a  fieri 
facias,  No.  2,  to  this  term,  and  stayed  by  order  of  plaintiff's 
attorney."  A  second  pluries  fieri  facias  issued  December  8th, 
1834,  No.  5,  to  February  term,  1835. — There  was  no  endorse- 
ment of  the  time  it  came  to  the  sheriff's  hands.  This  writ  was 
returned  thus, "  directed  by  plaintiff's  attorney  to  do  nothing  with 
this  writ  until  further  orders." 

Upon  the  return  of  all  the  above-mentioned  writs,  to  wit,  at 
February  term,  1835,  the  attorney  of  Samuel  D.  Ingham  and 
John  II.  Ingham  took  a  rule  to  show  cause  why  they  should  not 
be  permitted  to  take  out  of  the  sheriff's  hands  the  amount  of 
their  execution.  This  rule  was  opposed  both  by  Yardley  and 
Brock  ;  who  severally  claimed  to  be  .first  paid  out  of  the  proceeds 
of  sale,  in  the  sheriff's  hands.  Rules  were  also  entered  to  take 
depositions,  by  S.  D.  Ingham  and  John  H.  Ingham,  and  also  by 


1835.]  OF  PENNSYLVANIA.  118 

(Inghain  v.  Snyder.) 

Samuel  Yardley,  Jr.;  under  which  the  following  depositions  were 
taken. 

(Deposition  of  M.  H.  Snyder. ,) 

"From  information  that  Mr.  Ingham's  execution  was  to  be 
pushed,  I  went  to  see  Mr.  Inghain,  and  he  agreed  that  if  I  Avould 
pay  the  interest  up  to  the  time,  and  obtain,  from  Mr.  Brock,  an 
agreement  that  Mr.  Ingham's  execution  should  have  the  priority, 
and  wouldn't  take  advantage  of  Mr.  Ingham's  execution,  that 
he  would  stay  his  proceedings  against  me.  I  told  him  I  thought 
I  could  do  so.  He  then  gave  me  a  letter  to  Mr.  Chapman  as  his 
attorney,  the  substance  of  which  letter  corresponded  with  the 
above  arrangements.  This  was  about  ten  days  or  two  weeks  be- 
fore the  December  term,  1834.  I  told  Mr.  Ingham  that  I 
thought  I  could  make  the  arrangement.  I  came  home  and  saw 
Mr.  Field,  and  told  him  what  passed  between  Mr.  Ingham  and 
myself.  Field  told  me  I  must  do  it.  I  tried  to  get  the  money 
and  the  agreement,  and  I  couldn't.  I  had  part  of  the  money, 
and  still  thought  I  could  get  the  rest.  I  paid  a  part  to  Mr. 
Field,  fifteen  dollars,  after  I  found  I  couldn't  get  the  rest  of  the 
money,  and  couldn't  make  the  arrangement  with  Mr.  Brock.  I 
did  nothing  more.  I  didn't  tell  Mr.  Ingham,  or  his  attorney, 
that  I  couldn't  get  the  money ;  but  I  told  his  attorney  that  I 
could.  This  was  all  the  arrangement  that  *was  made  r*i  i  qn 
with  the  sheriff  or  plaintiff.  I  felt  a  good  deal  worried, 
and  wanted  to  make  the  best  arrangement  I  could.  After  the 
sheriff  had  made  the  levy,  and  was  going  to  sell,  I  called  on  Mr. 
Chapman,  (Mr.  Ingham's  attorney,)  at  his  office,  for  the  purpose 
of  getting  a  stop  put  to  it,  if  it  could  be  done.  He  told  me  he 
couldn't  make  any  arrangement,  or  do  anything,  because  he  was 
Mr.  Ingham's  attorney ;  and  that  all  that  could  be  done  was  for 
me  to  pay  the  money,  or  the  property  must  be  sold ;  and  that  if 
any  arrangement  was  to  be  made,  he  must  make  it  with  Mr.  Ing- 
ham. I  then  went  to  Mr.  Ingham,  and  obtained  the  letter  to 
Mr.  Chapman,  referred  to  in  the  examination  in  chief ;  upon  my 
informing  Mr.  Chapman  that  I  didn't  think  it  possible  that  I 
could  be  able  to  make  the  arrangement,  Mr.  Chapman  then  di- 
rected the  sheriff  to  go  on  and  sell.  This  was  several  days  after 
I  had  seen  Mr.  Ingham.  I  called  to  see  Mr.  Field  again,  and  he 
told  me  if  I  *ould  pay  the  greater  part  of  the  money,  give  my 
note  to  him  for  the  rest,  and  get  the  arrangement  with  Mr.  Brock, 
he  wouldn't  sell.  It  was  the  expressed  and  decided  intention  of 
Mr.  Ingham  and  his  counsel,  to  sell  the  property,  unless  the 
arrangement  was  made.  The  interest  amounted  to  about  sixty 

O 

dollars. 

The  first  levy  that  was  made,  was  under  the  execution,  return- 


119  SUPREME  COURT  [Dec.  Term, 

(Ingbam  t>.  Snyder.) 

able  to  December  term.  The  levy  was  made  several  weeks  be- 
fore the  return  of  the  execution.  The  goods  were  not  advertised 
until  after  the  December  term.  I  had  an  account  against  Mr. 
Ingham  of  about  fifty  dollars,  all  his  account  against  me  was 
embraced  in  the  judgment ;  the  account  I  had  against  Mr.  Ing- 
ham,  and  what  money  I  paid,  would  have  amounted  to  more  than 
the  interest  due  at  the  time  I  made  the  arrangement  with  Mr. 
Ingham.  I  said  nothing  to  Mr.  Ingham  about  my  accounts.  I 
forgot  to  mention  it.  .  My  understanding  was,  that  I  was  to 
raise  sixty  odd  dollars  in  money.  Mr.  Chapman  told  me  that  I 
ought  to  have  my  claim  deducted  from  Mr.  Ingham's  account, 
when  the  judgment  was  given;  and  that  if  I  had  an  account 
against  Mr.  Ingham,  he  had  no  doubt  Mr.  Ingham  would  allow 
it.  A  considerable  part  of  my  account  accrued  since  the  judg- 
ment was  given;  the  sixty  odd  dollars  were  to  be  paid  without 
any  regard  to  my  account.  Sheriff  Field  depended  upon  my 
promise  to  him ;  the  fifteen  were  paid  the  Saturday  or  Sunday 
preceding  the  December  Court.  There  were  seventy-five  dollars 
rent  due  from  me  to  S.  Yardley.  I  was  to  pay  one  hundred 
dollars  per  year.  Nothing  had  been  paid  from  the  1st  of  April, 
until  the  time  of  sale.  The  rent  was  payable  quarterly.  There 
was  no  written  lease,  it  was  only  a  private  understanding  between 
us,  that  the  rent  was  payable  quarterly.  Mr.  Yardley  don't  owe 
me  any  thing." 

f*1201         *  Deposition  of   William  Field,  Sheriff"  of  Sucks 

County. 

"  I  don't  recollect  having  any  orders  respecting  the  first  fieri 
facias.  I  returned  it  stayed.  The  orders  given  to  me  respecting 
the  fieri  facias  to  December  term,  were  to  go  on  and  sell.  I  then 
called  on  Mr.  Snyder,  and  told  him  what  he  had  to  depend  upon. 
This  direction  was  given  to  me  before  Mr.  Snyder  went  to  Mr. 
Ingham.  Mr.  Chapman  told  me  if  Mr.  Snyder  raised  a  certain 
portion  of  the  money,  (about  sixty  dollars,)  and  got  an  agree- 
ment from  Mr.  Brock  not  to  take  advantage  of  delays,  the  pro- 
ceedings might  be  stayed.  There  was  no  time  fixed  in  which 
this  was  to  be  done.  I  understood  from  Mr.  Snyder  that  Brock 
would  agree  to  make  the  arrangement,  and  that  Mr.  Snyder  had 
forty  dollars,  and  that  he  could  make  up  the  rest ;  if  not,  the 
sheriff  and  Doctor  Mathews  would  lend  him  the  rest ;  and  I  did 
not  know  that  this  arrangement  could  not  be  made  until  it  was 
too  late  to  sell.  I  depended  upon  the  promise  of  Mr.  Snyder.  I 
understood  from  Mr.  Chapman  that  unless  this  arrangement  was 
made,  I  must  go  on  and  sell ;  and  the  matter  was  left  to  me  to  see 
that  it  was  done. 

Yardley's  fieri  facias,  and  Ingham's  fieri  facias  to  February 


1835  ]  OF  PENNSYLVANIA.  120 

(Ingham  v.  Snyder.) 

term,  were  placed  in  my  hands,  before  court  commenced,  on  the 
8th  of  December.  Mr.  Ingham's  fieri  facias  was  placed  in  my 
hands  by  Mr.  Purdy,  the  prothonotary's  clerk.  I  never  received 
any  directions  from  Mr.  Ingham's  attorney,  with  regard  to  it — 
but  to  levy  on  property,  not  levied  upon  by  the  fieri  facias  to 
December  term.  This  was  the  same  day  the  fieri  facias  issued ; 
and  Mr.  Chapman  said  the  fieri  facias  to  February  term  had 
issued  contrary  to  his  orders.  This  was  upon  his  being  informed 
that  the  said  fieri  facias  was  in  my  hands.  The  orders  given  to 
me  to  levy  on  other  property,  I  think  were  given  after  Yardley's 
execution  was  placed  in  my  hands.  I  received  no  orders  respect- 
ing Ingham's  fieri  facias  to  February  term,v  until  after  Yardley's 
had  issued.  There  was  no  intention  ever  expressed  or  manifested 
by  Mr.  Ingham  or  his  attorney,  to  do  otherwise  than  to  sell  the 
property ;  but  it  was  their  desire  to  have  the  property  sold. 
When  I  told  Mr.  Chapman  that  Mr.  Snyder  could  not  make  the 
arrangement,  he  stated  to  me  that  I  must  go  on  and  sell ;  and  if 
there  was  not  time  to  sell  before  court,  I  must  sell  immediately 
after.  This  was  a  day  or  two  before  court  On  Saturday  be- 
fore court  I  had  hoped  that  Snyder  would  make  the  arrangement, 
and  expected  it.  I  informed  Mr.  Chapman  that  day,  I  had  got 
a  part,  and  Mr.  Snyder  was  not  to  get  the  balance  at  that  time. 
Mr.  Chapman  said  I  must  take  the  responsibility  on  myself;  his 
orders  were  to  go  on.  I  informed  Mr.  Chapman  at  that  time  that 
I  had  understood  that  Mr.  Snyder  had  other  property,  not  levied 
upon  by  the  fieri  facias  to  December  term,  to  wit:  a  gig  and  har- 
ness. This  property  was  at  Mr.  Pettits'.  I  did  nothing  with 
Mr.  Ingham's  fieri  facias  to  February  *  term.  I  placed  r*i  21~| 
it  in  Mr.  Chapman's  hands,  inasmuch  as  I  did  nothing 
with  it. 

Deposition  of  Joseph  H.  Purdy. 

"  Mr.  Chapman  gave  me  a  prcecipe  for  a  fieri  facias  to  Feb- 
ruary term,  in  the  case  of  Ingham  against  Snyder,  on  Saturday 
afternoon  preceding  court.  Mr.  Chapman  told  me  not  to  issue 
it  until — (these  were  his  words  ;) — I  didn't  know  what  that  meant, 
until  it  was  afterwards  explained,  several  days  after ; — and  then 
pointed  up.  There  were  some  persons  present  at  the  time.  Upon 
Mr.  Chapman  being  informed  that  the  fieri  facias  of  Ingham's 
had  issued,  and  been  put  in  the  sheriff's  hands,  Mr.  Chapman 
said  that  he  had  intended  that  it  should  not  issue  before  the  bell 
rang.  I  am  Mr.  Chapman's  student,  and  also  deputy  prothono- 
tary.  I  delivered  the  execution  to  the  sheriff,  in  the  capacity  of 
student,  without  Mr.  Chapman's  knowledge.  I  supposed,  at  the 
time  I  was  doing  it,  that  I  was  contributing  to  the  interest  of 
Mr.  Chapman's  client.  I  received  no  directions  from  Mr. 


121  SUPREME  COURT  [Dec.  Term, 

(Ingbam  v.  Snyder.) 

Chapman  at  any  time,  that  the  execution  should  not  be  issued 
till  the  bell  rang.  I  never,  at  any  time  before,  received  any 
directions  from  Mr.  Chapman,  not  to  issue  a  writ  before  the  ring- 
ing of  the  bell.  Ingham's  fieri  facias  to  December  term,  was 
issued  after  the  bell  rang.  I  was  never  informed  by  Mr.  Chap- 
man that  it  was  necessary  to  wait  till  the  ringing  of  the  bell 
before  execution  should  issue. 

I  don't  recollect  of  any  instance  in  which  Mr.  Chapman  ever 
directed  an  execution  to  issue  before  the  ringing  of  the  bell  ;  but 
there  may  have  been.  At  the  time  Mr.  Chapman  told  me  not  to 
issue  the  execution,  and  pointed  up  towards  the  cupola,  I  was 
very  busy,  and  did  not  understand  him.  To  Mr.  Chapman's 
directions  I  replied  '  yes  ;'  and  nothing  more  was  said." 

The  case  came  up  for  argument  at  the  adjourned  Court,  March 
13th,  1835,  and  was  held  under  advisement  until  June  5th,  1835  ; 
when  the  court  ordered  and  decreed,  that  the  rules  taken  by 
Samuel  D.  Ingham  and  John  II.  Ingham  be  made  absolute.  An 
appeal  from  this  decree  of  the  Common  Pleas  was  entered  under 
the  act  of  1827,  by  Samuel  Yardley,  Jr.,  one  of  the  claimants 
who  assigned  for  error  : 

1.  That  the  court  erred  in  directing  the  rule  taken  by  Samuel 
D.  Ingham  and  John  II.  Ingham,  to  be  made  absolute. 

2.  That  the  court  erred  in  not  decreeing  that  Samuel  Yardley, 
Jr.,  should  take  out  of  the  proceeds  of  the  sheriffs  sale,  the 
amount  of  his  execution. 


f*1  221  <          i  t?  Yardley  : 

1.  The  record  shows  that  the  plaintiffs  issued  four  writs 
of  fieri  facias  ;  two  of  which  were  stayed  by  order  of  his  attor- 
ney. To  the  third,  also,  the  sheriff  made  return  that  proceed- 
ings were  stayed,  although  he  was  allowed  to  amend  the  return: 
and  the  fourth  was  recalled  by  the  plaintiffs.  These  proceedings 
raise  a  presumption  that  the  object  was  not  to  obtain  satisfaction 
of  the  debt,  but  security  for  it.  Now,  it  is  settled  by  a  series  of 
decisions,  that  the  lien  of  an  execution  upon  personal  property, 
is  divested  by  an  order  to  the  sheriff  to  stay  proceedings.  The 
recent  cases  of  The  Commonwealth  v.  Strembeck,  (3  Rawle,  341,) 
and  ffickman  v.  Caldtvell,  (4  Rawle,  376,)  recognize  the  doctrine 
in  its  fullest  extent.  [GiBSON,  C.  J.  —  The  rule  you  have  re- 
ferred to,  applies  only  to  cases  in  which  there  has  been  an  actual 
levy.  What  evidence  is  there  here  of  any  levy,  prior  to  that 
which  took  place  under  the  pluries  fieri  facias  ?~\  .  The  evidence 
shows,  that  directions  were  given  to  stay  proceedings  upon  that 
writ,  in  case  the  defendant  paid  the  interest  due  upon  the  judg- 
ment ;  and  the  deposition  of  Snyder  proves,  that  the  interest  was 
substantially  paid. 


1835.]  OF  PENNSYLVANIA.  122 

(Ingliam  ».  Snyder.) 

2.  Yardley's  execution  was  regularly  issued.  It  appears  by 
the  record,  that  it  was  issued  on  the.  8th  of  December,  and  came 
to  the  sheriff's  hands  on  the  same  day,  at  twenty-five  minutes 
after  seven  o'clock,  A.  M.  The  8th  of  December  was,  it  is  true, 
the  first  day  of  December  term,  and  the  writ  was  returnable  to 
February  term ;  but  this  does  not  render  it  invalid.  In  Cashee 
v.  Wisner,  (2  P.  A.  Browne,  245,)  the  District  Court  refused  to 
set  aside  a  writ  which  had  been  issued,  on  the  morning  of  the  first 
day  of  the  term,  upon  which  the  defendant  had  been  arrested  on 
the  same  day,  after  the  rising  of  the  court.  In  England  the  rule 
is  the  same.  Maud  v.  Bernard,  (2  Burr.  Rep.,  812.)  Non  con- 
stat  that  the  court  was  not  in  session  at  the  time  the  writ  issued. 
The  rule,  with  respect  to  judicial  writs,  applies  to  mesne  process. 
'Baker  v.  Small,  (4  Yeates,  187.) 

Mr.  W.  M.  Meredith,  for  the  defendant  in  error: 

1.  It  never  has  been  decided  that  the  mere  staying  of  pro- 
ceedings on  a  fieri  facias,  without  a  levy,  prevents  the  issuing 
of  a  new  execution.     The  second  pluries  fieri  facias  was  the  mis- 
take of  a  clerk ;  and  its  immediate  recall  prevented  any  preju- 
dice to  the  plaintiff.      Youny  v.  Taylor,  (2  Binn.  230 ;)  Burke 
v.  M'Fall,  (2  P.  A.  Browne,  143 ;)  Alison  v.  Eeam,  (3  Serg. 
&  R.  142 ;)  Bank  of  Pennsylvania  v.  Latshaw,  (9  Serg.  &  R. 
9  ;)  Tidd,  390. 

2.  Yardley's   execution   was    invalid,   because    a    term    was 
omitted.     The  sheriff's  deposition  proves,  that  the  writ  was  de- 
livered to  him  before  the  sitting  of  the  court ;  which  is  the  com- 
mencement of  the  *term.     The  point  for  which  Baker     r*i  £31 
v.  Smith  is  cited,  was  not  decided  by  the  court.     It  is 

said  by  counsel  arguendo.  But  this  is  not  merely  the  case  of  a 
writ  returnable  over  a  term.  It  appears  by  the  record,  that  the 
judgment  was  entered  on  the  8th  of  December,  to  December  term. 
How  could  this  take  place,  before  the  court  had  commenced  its 
sitting  ?  If  the  judgment  was  regular,  the  execution  must  be  ir- 
regular, since  it  certainly  issued  before  the  meeting  of  the 
court. 

PER  CURIAM.  The  recall  of  the  second  pluries  fieri  facias, 
before  action  had  on  it,  restored  matters  to  the  footing  on  which 
they  stood  before  it  was  issued  ;  and  prevented  it  from  being,  as 
it  might  otherwise  have  been,  an  abandonment  of  the  preceding 
levy.  It  was  intended  not  to  be  an  actual  abandonment,  but  to 
seize  on1  property  not  before  seized — a  most  unheard  of  pro- 
ceeding, and  one  whose  consequences  could  have  been  averted 
but  by  relinquishing  it  at  the  threshold.  By  reason  of  the  recall, 
too,  it  would  be  unnecessary  to  inquire  whether  the  execution 


123  SUPREME  COURT  [Dec.  Term, 

(HartD.  Hill.) 

were  void,  by  reason  of  having  been  issued  before  the  sitting  of 
the  court  on  the  test  day;  but  the  point  presents  no  difficulty; 
for,  granting  for  the  moment,  that  the  term  begins  with  the  actual 
sitting  of  the  court,  still  it  is  proper  to  say  that,  although  it  is 
otherwise  in  respect  to  mesne  process,  the  intervention  of  a  term 
between  the  teste  and  return  of  judicial  process,  is  not  even  an  ir- 
regularity, because  it  gives  the  defendant  no  day  in  court.  The 
lien  of  the  execution,  therefore  was  not  impaired. 

Decree  affirmed. 
Cited  by  Counsel,  2  Miles,  294. 


[124*]  [*PHILADELPHIA,  JANUARY  22,  1836.] 

HART  against  HILL. 

IN   ERROR. 

1.  A  will  executed  in  1748,  contained  the  following  clause  :     "I  give  and 
devise  unto  my  cousin  J.  T.,  son  of  my  brother  T.  T.,  my  messuage  or 
tenement  and  tract  of  land  where  I  dwell,  bounded  by  the  several  courses 
along  the  line  run  to  Darby  creek  ;  thence  down  the  said  creek  to  the 

river ;  thence  by  the  river  to  the  place  of  beginning to  him  and 

his  heirs  lawfully  descending  from  his  body,  and   in  default  of  such 
heirs,  to  my  right  heirs,  for  ever."     In  a  subsequent  clause  of  the  same 
will,  was  the  following  devise  :     "I  give  and  devise  to  D.  S.  my  fishing 
place,  to  him  and  his  heirs  for  ever ;  and  likewise  it  is  my  will,  that  he 
shall  have  the  help  and  use  of  my  negroes,  M.  and  H.,  one  month  in 
each  year,  in  fishing  time,  till  they  respectively  attain  to  thirty  years  of 
age.     Held,  that  D.  8.  did  not  acquire  by  this  clause,  any  right  in  the 
soil  on  the  bank  of  the  river,  but  merely  an  easement,  or  so  much  use  of 
the  shore  as  was  necessary  for  the  purpose  of  the  fishery. 

2.  Trespass  will  lie  by  the  owner  of  a  fishery,  for  a  direct  interruption  in 
the  exercise  of  his  right. 

THIS  was  a  writ  of  error  to  the  Court  of  Common  Pleas  of  the 
county  of  Delaware,  to  remove  the  record  in  an  action  of  trespass 
quare  clausum  freyit,  brought  to  November  Term,  1832,  by 
Mary  Hart,  against  Jacob  Hill. 

The  plaintiff  was  the  owner  and  possessor  of  four  lots  of  land, 
situated  if  Tinicum  township,  Delaware  county,  lying  on  the 
margin  of  the  river  Delaware,  containing  altogether  about  twenty- 
four  acres,  and  one  hundred  and  thirty-two  perches.  The  title  to 
these  lots  was  acquired  as  follows: 

Christopher  Taylor,  by  his  will,  dated  the  8th  day  of  Decem- 
ber, 1748,  proved  the  24th  of  the  same  month,  devised  as  fol- 
lows :  "  I  give  and  devise  unto  my  cousin,  John  Taylor,  son  of 


1835.]  OF  PENNSYLVANIA.  .        124 

(Hartt).  Hill.) 

my  brother,  Thomas  Taylor,  my  messuage  or  tenement  and  tract 
of  land  where  I  dwell,  bounded  by  the  several  courses  along  the 
line  run  to  Darby  creek  ;  thence  down  the  said  creek  to  the  river  ; 
thence  by  the  river  to  the  place  of  beginning  ;  likewise,  I  give 
and  devise  to  him,  twenty  acres  of  land,  being  woodland,  to  be 
laid  out  as  conveniently  as  may  be  by  Plum  creek,  to  him  and 
his  heirs  lawfully  descending  from  his  body,  and  in  default  of 
such  heirs  to  the  right  heirs  of  me  the  said  Christopher  for- 
ever." 

In  the  Common  Pleas  of  Chester  county,  of  August  Term,  1761, 
John  Taylor  suffered  a  common  recovery,  whereby  he  barred  the 
entail  in  the  premises  devised  as  above. 

The  four  lots  of  the  plaintiff  were  included  in  the  said  devise, 
and  were  but  a  small  portion  of  the  land  thereby  given. 

John  Taylor,  the  devisee,  and  Mary,  his  wife,  by  deed  dated 
October  *31,  1800,  conveyed  two  of  said  lots  to  Benja-  r* 


min  Rue,  by  metes  and  bounds  as  follows,  viz.  :  "  One 
of  them  being  a  piece  of  marsh  meadow,  situate  at  the  mouth  of 
Darby  creek,  beginning  at  a  stake  in  the  bank  next  to  the  river 
Delaware,  thence  north  two  degrees  east  33.3  perches  to  a  stake 
at  or  in  a  drain  ;  thence  along  said  drain  north  79  degrees  west 
16  perches  to  a  stake  in  the  bank  next  to  Darby  creek  ;  thence 
along  the  same  south  26  1  degrees  west  17.2  perches  to  a  stake  ; 
thence  south  13  degrees  east  25  perches  to  a  post  in  the  corner 
of  the  river  bank  ;  thence  north  79  degrees  east  17.1  perches  to 
the  place  of  beginning,  containing  three  acres  and  a  half  more 
or  less." 

"  The  other  piece  of  land  begins  at  a  post  by  the  river  Dela- 
ware ;  thence  along  a  fence  dividing  the  land  rented  by  Thomas 
Vernon  and  Benjamin  Rue,  north  9  degrees  west  36  perches  to 
a  stake  ;  thence  south  81  degrees  west  9  perches  to  a  stoke  ; 
thence  south  9  degrees  west  33  perches  to  the  river  Delaware  ; 
thence  up  the  same  to  the  place  of  beginning,  containing  two  acres, 
be  the  same  more  or  less." 

Benjamin  Rue,  and  Mary,  his  wife,  by  deed  dated  September 
4th,  1804,  conveyed,  by  the  same  metes  and  bounds,  the  said  two 
lots  to  John  Shreeve  "  together  with  a  right  and  privilege  of  a 
sufficient  cartway  and  passage  along  the  foot  of  the  bank,  to  and 
from  the  hereby  granted  meadow  land." 

The  title  to  one  of  the  other  two  lots  was  thus  derived.  John 
Taylor,  by  his  deed  dated  September  28th,  1801,  conveyed  to 
Benjamin  Rue  for  life,  and  after  his  death  to  Lewis  Rue  and 
Catharine  Rue  in  fee—  "All  that  certain  piece  or  parcel  of  up- 
land and  meadow  ground,  situate  on  Tinicum  Island  in  Tinicum 
township,  aforesaid,  bounded  and  described  as  follows,  to  wit: 
beginning  where  Darby  creek  empties  itself  into  the  river  Dela- 


125  SUPREME  COURT  [Dec.  Term, 

(Hartfl.  Hill.) 

ware  ;  thence  up  the  said  river,  according  to  the  several  courses 
thereof,  about  81  perches  ;  thence  still  up  the  said  river  south 
59J  degrees,  east  66J  perches  ;  thence  north  9J  degrees,  east 
25.9  perches  ;  thence  south  84  j  degrees,  east  20.15  perches  ; 
thence  north  4£  degrees-,  east  103.8  perches  to  the  bar  post ; 
thence  north  68  degrees,  west  23.1  perches  to  the  spring  head  in 
the  middle  of  the  drain  ;  thence  along  the  drain  north  38£  de- 
grees, west  15  perches  ;  thence  south  42  degrees,  west  26  perches 
to  the  middle  of  another  drain,  thence  along  the  middle  of  the 
drain  north  55  degrees,  west  134  perches  to  the  middle  of  the 
bank  ;  and  thence  the  same  course  to  Darby  creek,  and  down  the 
said  creek  the  several  courses  thereof  about  182  perches  to  the 
place  of  beginning,  containing  52£  acres  of  upland  and  83J  acres 
of  meadow  within  bank,  (excepting  and  always  reserving  out  of 
this  gift  two  certain  pieces  of  land,  one  of  marsh  meadow  at  the 
mouth  of  Darby  creek,  containing  three  acres  and  a  half  more  or 
less  ;  and  the  other  of  upland,  containing  two  acres  more  or  less, 
which  the  said  John  Taylor,  and  Mary,  his  wife,  by  indenture 
l"*1261  *dated  31st  of  October,  1800,  granted  unto  the  said 
J  Benjamin  Rue,  in  fee.)" 

Mannus  Kain  and  others,  being  the  surviving  children  of  John 
Taylor,  and  Mary,  his  wife,  then  both  deceased,  by  their  joint 
deed  dated  December  3d,  1804,  confirmed  the  title  in  the  last 
described  premises,  by  the  same  metes  and  bounds  (barring  two 
omissions)  to  the  said  Benjamin  Rue,  Lewis  Rue,  and  Catharine 
Rue,  as  given  by  the  deed  of  September  28,  1801,  from  John 
Taylor. 

Lewis  Rue  and  wife,  and  Catharine  Rue,  by  their  Meed  dated 
the  7th  of  May,  1805,  conveyed  in  fee  to  the  said  Benjamin  Rue, 
that  part  of  the  land  previously  conveyed  to  him  for  life,  described 
and  bounded  as  follows  : 

"  All  that  certain  piece  of  upland  marked  in  the  said  draft  (re- 
ferring to  the  draft  made  by  John  Thompson,)  No.  1,  Benjamin 
Rue,  situate  on  Tinicum  Island  aforesaid,  part  of  the  aforesaid 
upland  and  meadow  ground,  bounded  and  described  as  follows, 
to  wit : — beginning  at  a  stone  on  the  bank  of  the  river  Delaware, 
at  a  corner  of  a  piece  of  land  of  John  Shreeve — thence  extend- 
ing by  the  same  north  9  degrees,  east  27.8  perches  to  a  stone, 
south  82  degrees,  east  9  perches  to  a  stone,  south  9£  degrees, 
west  5.7  perches  to  a  corner  of  land  of  the  heirs  of  John  Taylor, 
deceased  ;  thence  by  the  same  south  84  degrees,  east  20  perches 
to  a  corner  ;  thence  north  4J  degrees,  east  104  perches  to  a  bar 
post ;  thence  north  68  degrees,  west  about  18  perches  to  a  cor- 
ner ;  thence  south  13  degrees,  west  127.5  perches  to  a  stone  on 
the  bank  of  the  said  river  ;  thence  up  the  same  on  the  several 
courses  thereof  7  perches  to  the  place  of  beginning,  containing  17 
acres  and  12  perches." 


1835.]  OF  PENNSYLVANIA.  126 

(Hart*.  Hill.) 

Benjamin  Rue,  and  Mary,  his  wife,  by  deed  dated  March  13th, 
1806,  conveyed  amongst  other  real  estate,  the  said  seventeen  acres 
and  twelve  perches,  to  David  Rose,  by  the  following  metes  and 
bounds  :  "  beginning,  at  low  water  mark  of  the  river  Delaware,  at 
the  corner  of  a  piece  of  land  of  John  Shreeve,  thence  extending 
by  the  same  and  a  stone  on  the  bank  of  the  said  river  north  9 
degrees,  east  27.8  perches  from  the  said  stone  on  the  bank  to  a 
stone  ;  thence  south  82  degrees,  east  9  perches  to  a  stone  ;  thence 
south  9J  degrees,  west  5.7  perches  to  a  corner  of  land  of  the 
heirs  of  John  Taylor  deceased ;  thence  by  the  same  south  84  de- 
grees, east  20  perches  to  a  corner ;  thence  north  4J  degrees,  east 
104  perches  to  a  bar  post ;  thence  north  68  degrees,  west  about 
18  perches  to  a  corner  of  Lewis  Rue's  land ;  thence  by  the  same 
south  13  degrees,  west  127.5  perches  to  a  stone  on  the  bank  of 
the  said  river ;  thence  on  the  same  course  to  low  water  mark ; 
•thence  up  the  same  river  on  the  several  courses  thereof  7  perches 
to  the  place  of  beginning,  containing  17  acres  and  12  perches." 

David  Rose,  and  Ann,  his  wife,  by  deed  dated  March  12th, 

1823,  *  conveyed  the  said  17  acres  and  1-2  perches,  by     r*-j97i 
the  same  metes  and  bounds  to  Joshua  Shreeve,  in  fee. 

The  remaining  lot,  containing  two  acres  and  forty  perches,  was 
conveyed  by  Christiana  Rue  to  Jeremiah  Reeder,  by  deed  dated 
April  10th,  1808,  in  fee,  and  said  Jeremiah  Reeder,  by  deed 
dated  May  20th,  1808,  conveyed  the  same  to  John  Shreeve  by 
the  following  metes  and  bounds  : — "  beginning  at  a  stake  or  stone 
on  the  river  Delaware,  corner  of  the  said  John  Shreeve's  other 
land;  thence  along  a  line  of  the  same  north  9J  degrees,  east 
25.6  perches  to  a  corner  of  land  now  or  late  of  Benjamin  Rue  ; 
thence  in  a  line  of  the  same  south  84  degrees,  east  12.4  perches 
to  a  stone,  corner  of  Edith  Kain's  lot ;  thence  in  a  line  of  the 
same  south  5  degrees,  west  32  perches  to  a  stone  standing  on  the 
bank  of  the  river  Delaware  ;  and  thence  down  the  said  river  15.8 
perches  to  the  place  of  beginning."  John  Shreeve  being  thus 
the  owner  of  said  four  lots,  by  his  will  dated  February  5th, 

1824,  proved  May  11,  1826,  devised  the  same  to  the  use  of  his 
daughter,  Mary  Hart,  the  plaintiff. 

Christopher  Taylor,  at  the  time  of  making  his  will,  owned  all 
the  real  estate  bordering  on  the  river  Delaware,  from  Darby 
creek  mouth,  upwards,  to  the  Lazaretto,  a  distance  of  about  1150 
yards  ;  and  after  an  interval  of  half  a  mile,  his  possessions  con- 
tinued about  one  mile  further. 

The  plaintiff  did  not  complain  of  any  acts  .of  trespass  on  the  lot 
at  the  mouth  of  Darby  creek.  The  trespasses  complained  of 
consisted  in  the  defendant's  coming  with  his  fishermen  on  the 
other  three  lots,  which  lie  contiguous,  beginning  on  the  shore  at 

VOL.  i. — 9       ' 


127  SUPREME  COURT  -  [Dec.  Term, 

(Hart  v.  Hill.) 

the  distance  of  753  yards  above  the  mouth  of  Darby  creek,  and 
extending  up  the  river  176  yards. 

About  the  year  1800,  John  Shreeve  built  a  house  known  as 
the  Lazaretto  tavern,  and  a  wharf  on  his  lot  about  80  yards  above 
his  lower  line. 

The  acts  complained  of  by  the  plaintiff  were  not  denied  by  the 
defendant,  but  were  justified  by  him  on  the  ground  of  a  right, 
deduced  also  from  the  will  of  said  Christopher  Taylor,  in  these 
words :  "  I  give  and  devise  unto  the  said  David  Sanderlin  my 
fishing  place,  to  him  and  his  heirs  for  ever ;  and  likewise  it  is  my 
will  that  he  shall  have  the  help  and  use  of  my  negroes,  Milford 
and  Harry,  one  month  in  each  year  in  fishing  time,  till  they  re- 
spectively attain  to  thirty  years  of  age." 

The  plaintiff's  counsel  requested  the  court  to  charge 

1.  That  under  the  will  of  Christopher  Taylor,  given  in  evi- 
dence, dated  8th  of  December,  1748,  John  Taylor  took  an  estate' 
of  inheritance  in  the  messuage,  tenement,  and  tract  of  land,  in 
which  the  testator  then  dwelt ;    and   that    such  inheritance  ex- 
tended down  to  low  water  mark  on  the  river  Delaware. 

2.  That  by  the  devise  in  the  same  will  to  David  Sanderlin,  of 
a  fishing  place,  &c.,  a  fee  simple  to  the  said  David  Sanderlin,  did 

T*1 281  no^  *  Pass  *n  *^e  s  °^  ^e  lan^>  between  high  and  low 
L  -"  water  mark,  in  the  premises  mentioned  in  the  above  de- 
vise to  John  Taylor. 

3.  That  by  such  devise  to  David  Sanderlin,  he  took  but  an 
easement,   or  right   to  use  the   said  shore  for   the  purpose  of 
fishing. 

4.  That  such  easement  extended  only  so  far  as  the  said  fishing 
was  used  by  Christopher  Taylor,  the  testator. 

5.  That  the  devise  being  merely  of  an  easement ;  under  the 
pleadings  in  this  cause,  no  evidence  of  a  right  of  fishery  in  the 
defendant,  or  those  under  whom  he  acts,  to  justify  the  acts  com- 
plained of  by  the  plaintiff,  is  properly  before  the  jury. 

In  answer  to  this  request  the  court  charged  the  jury  as  fol- 
lows: 

"The  three  first  propositions  embrace  one  general  inquiry,  and 
the  sentiments  of  the  court  may  as  well  be  expressed  in  answer  to 
them  altogether  :— 

"The  construction  of  the  words  of  a  will  generally  belong*  to 
the  court,  and  the  intention  of  the  testator  must  be  gathered  from 
the  will  itself;  but  to  understand  its  provisions  properly,  may 
sometimes  require  a  practical  application  of  the  words  of  the  sub- 
ject matter — the  state  of  facts  as  they  existed  at  the  time  the  will 
was  made,  and  the  other  provisions  of  the  same  will :  Tlius,  where 
one  devises  a  plantation,  bordering  upon  a  navigable  river,  to  A., 
the  devisee  would  prima  facie,  and  without  further  restriction,  be 


1835.]  OF  PENNSYLVANIA.  128 

(Hart  v.  Hill.) 

entitled  to  hold  down  to  the  water  edge  at  low  water  mark ;  but 
if  in  the  same  will  he  should  give  all  the  land  between  high  and 
low  water  mark,  or  all  his  shore,  or  all  his  wharves,  or  all  his 
mud  flats  to  another  in  fee  simple,  it  would  be  hazardous  in  refer- 
ence to  such  a  will  to  affirm  that  which  in  general  would  be  true, 
viz.:  'that  the  boundary  of  A.  would  be  the  water's  edge  at  low 
water  mark :  so  by  the  simple  devise  to  John  Taylor  of  an  estate 
of  inheritance  of  his  plantation,  bounded  by  the  river  Delaware, 
his  boundary  would  extend  to  low  water  mark :  but  when  in  the 
same  will  a  devise  is  made  to  David  Sanderlin  of  'his  fishing 
place  to  him,  his  heirs  and  assigns  forever,'  and  when  we  con- 
sider the  testator  had  no  sort  of  dominion  over  any  thing  beyond 
low  water  mark,  and  that  his  '  fishing  place,'  if  he  had  one,  must 
necessarily  be  within  that  line,  and  a  part  of  the  land  that  would 
otherwise  be  included  within  John  Taylor's  devise — it  would  be 
equally  hazardous  to  say  a  fee  simple  did  not  pass  to  David  San- 
derlin, but  merely  an  easement  over  the  land  of  John  Taylor. 
Christopher  Taylor  owning  and  occtipying  the  land  bounded  by 
the  river  Delaware,  like  all  other  holders  of  land  on  our  principal 
rivers,  had  no  exclusive  privilege  or  right  to  fish  below  low  water 
mark  opposite  to  his  banks:  that  right  remained  in  the  state, 
and  unless  restrained  by  its  laws,  was  common  to  every  citizen: 
he  could  neither  grant  nor  devise  any  thing  except  within  low 
water  mark :  Every  devise  should  be  intended  for  the  benefit  of 
the  devisee ;  and  we  must  ask  ourselves  what  is  *meant  r-^  OQ-I 
by  this  devise  of  his  fishing  place  in  fee  simple  ?  It  had  '- 
nothing  to  act  upon :  and  we  think  it  could  be  nothing  else,  (for 
he  had  no  more  to  give,)  than  the  exclusive  right,  which  every 
owner  of  land  has  on  the  shore  or  margin  of  the  river,  to  use  his 
own  property,  for  drawing  seines  and  using  other  devices,  by  fix- 
ing capstans,  &c.  for  catching  fish:  this  is  a  valuable  right  and 
now-a-days  is  a  species  of  property  producing  considerable  rents. 
It  is  a  right  which  may  be  conveyed  or  devised  in  fee  simple,  or 
for  any  lesser  estate.  The  land  itself,  the  strip  between  high  and 
low  water  mark,  which  is  the  chief  if  not  the  only  land,  used  for 
these  purposes,  may  be  granted  or  devised  away,  so  that  the  owner 
of  the  adjoining  fast  land  may  not  interfere  with  nor  interrupt  it 
by  building  wharves,  walls  or  banks,  or  establishing  ferries  or 
otherwise. 

"  The  testator  devised  to  his  cousin,  David  Sanderlin,  his  '  fish- 
ing place'  in  fee  simple ;  and  whether  he  meant  the  land  on 
which  whatever  he  could  devise,  could  be  exercised,  the  land 
between  high  and  low  water  mark  ;  or  only  a  right  to  be  enjoyed 
upon  and  over  the  land  devised  to  John  Taylor,  is  the  question  ; 
his  meaning  may  have  been  the  one  or  the  other ;  but  judging 
from  the  will  itself  and  its  provisions  applied  to  the  actual  con- 


129  SUPREME  COURT.  [Der.  Term, 

(Hart  v.  Hill.) 

dition  of  the  property ;  observing  that  the  land  given  to  John 
Taylor  has  no  other  boundary  on  this  side  than  by  the  river,  and 
in  the  same  will  giving  to  David  Sanderlin  a  fishing  place  in  fee 
simple,  which  could  be  situate,  from  the  evidence,  in  no  other 
place  but  on  the  shore  between  the  land  given  to  John  Taylor 
and  low  water  mark,  the  court  are  of  opinion  that  the  devise  to 
David  Sanderlin  gave  him  an  estate  in  fee  simple  to  the  space 
between  high  and  low  water  mark,  from  the  mouth  of  Darby 
creek,  as  high  up  the  river  as  the  evidence  shall  satisfy  the  jury 
the  upper  end  of  the  fishing  place  extended ;  and  thus  passed  an 
exclusive  right  to  it,  so  that  no  one  could  build  or  encroach  upon 
it,  and  thereby  obstruct  the  right  of  Sanderlin  and  those  claiming 
under  him,  in  the  fishing  place  in  question.  This  also,  from  the 
evidence,  seems  to  have  been  the  understanding  and  construction 
adopted  by  John  Taylor  and  those  claiming  under  him  in  former 
times :  For  all  the  title  deeds  and  drafts  given  in  evidence,  prior 
to  the  deed  of  Benjamin  Rue  and  wife,  to  David  Rose,  dated 
13th  March,  1806,  called  for  stones,  posts,  or  land-marks  by,  at, 
or  on  the  bank  of  the  river ;  and  the  deed  just  referred  to,  is  the 
first  one  which  ventures  to  pass  by  those  land-marks,  on  the 
bank,  and  extend  out  to  low  water-mark,  although  there  is  evi. 
dence  of  the  carters  using  that  strip,  as  a,  fishery,  many  years  be- 
fore. 

"4th  and  5th.  The  two  last  propositions  are  immaterial,  accord- 
ing to  the  preceding  views  of  the  court,  and  cannot  be  answered 
in  the  affirmative. 

"  The  length  of  the  fishing  place  from  the  mouth  of  Darby  creek 
upwards,  or  what  is  its  upper  boundary,  is  a  subject  for  the  in- 
quiry of  the  jury  upon  the  evidence." 

T*1 301         *  ^^e  Pontiff'8  counsel  excepted  to  this  charge ;  and 
upon  the  removal  of  the  record  to  this  court,  assigned 
several  errors ;  of  which  the  only  one  insisted  upon,  was  in  the 
construction  of  the  will. 

Mr.  Dick,  for  the  plaintiff  in  error :  The  main  question  is,  did 
Sanderlin  by  the  will  of  Christopher  Taylor  acquire  a  title  to  the 
«o»7  on  the  bank  of  the  river,  or  a  mere  easement.  The  will  gave 
John  Taylor,  a  tract  of  land  running  "  to  Darby  creek ;  thence 
down  the  creek,  to  the  river,  and  thence  by  the  river  to  the  place 
of  beginning."  Now,  it  can  be  shown  by  the  cases,  that  the 
ownership  of  land  on  tide  water,  extends  to  low  water  mark. 
[GiBSON,  C.  J. — You  need  not  cite  authorities  for  that  position, 
it  is  well  settled.]  Our  title  then,  being  in  the  first  instance 
complete,  the  devise  to  Sanderlin  ought  to  be  so  construed  as  not 
to  conflict  with  it.  If  the  charge  of  the  court  below  was  right,  the 
benefit  to  Taylor,  whom  the  testator  evidently  regarded  with 


1835.]  OF  PENNSYLVANIA.  •  130 

(Hart  T.  Hill.) 

favor,  will  be  comparatively  small ;  and  the  testator  will  be  made 
to  appear  extremely  inconsistent  in  the  several  clauses ;  whereas 
the  construction  contended  for,  on  the  part  of  the  plaintiff  in  error, 
is  in  accordance  M'ith  an  established  maxim  of  law,  in  regard  to 
all  instruments,  of  giving  every  part  a  reasonable  and  consistent 
meaning.  Swinburne,  553.  The  words  "  fishing  place"  do  not, 
either  in  common  or  technical  language  imply  any  right  in  the 
soil.  We  contend  that  they  are  synonomous  with  "  fishery"  or 
"  fishing  pool."  In  Shrunk  v.  The  Schuylkill  Navigation  Com- 
pany, (14  Serg.  &  K,  81,)  C.  J.  Tilghm'an,  cites  the  act  of  9th 
March,  1796,  (2  Sm.  L.  370,)  and  llth  April,  1793,  (3  Sm.  L. 
115,)  as  speaking  of  "the  proprietors  of  fisheries,  and.  the  owners 
of  fishing  places  or  parts  used  as  fisheries."  The  act  of  9th 
March,  1771,  sec.  2,  (1  Sm.  L.  315,)  defines  "  what  is  to  be 
deemed  and  held  to  be  a  pool  or  fishing  place."  So  in  the  act 
of  16th  March,  1807,  (4  Sm.  L.  380,)  fishing  place  and  pool  are 
used  as  convertible  terms.  The  will  in  question  was  made  in 
1748  ;  and  the  general  opinion  then  was,  that  every  one  had  an 
exclusive  right  of  fishing  opposite  his  own  shore.  This  idea  was 
.  not  overthrown  until  the  decision  of  Carson  v.  Blazer,  in  1807, 
(2  Binn.,  486,)  and  that  was  by  a  bare  majority  of  the  court. 
[RocGERS,  J. — In  that  case,  the  question  was  as  to  the  right  of 
fishing  in  the  Susquehanna,  where  the  tide  did  not  ebb  and  flow  ; 
but  was  such  an  opinion  ever  entertained  in  respect  to  the  Dela- 
ware ?~\  William  Penn,  in  his  concessions,  when  he  declared  that 
"all  rivers"  should  be  "wholly  enjoyed  by  the  purchasers  into 
whose  lot  they  may  fall,"  made  no  distinction  between  rivers 
which  are  navigable,  and  those  which  are  not.  If  we  suppose  the 
right  given  by  this  will  to  Sanderlin,  to  be  the  same  as  that  which, 
according  to  C.  J.  Tilghman,  in  Shrunk  v.  The  Schuylkil  Navi- 
gation Company,  was  common  on  the  Schuylkill  and  other  rivers, 
viz.  an  "  exclusive  right  to  use  the  margin  of  the  river  for  the 
purpose  of  drawing  a  seine  or  practising  any  other  device  for  the 
*catching  of  fish,"  but  not  a  fee  simple  in  the  land ;  r*jgj-] 
then  all  parts  of  the  will  may  be  made  to  harmonize. 
[HUSTON,  J. — There  are  several  acts  of  Assembly  which  recog- 
nize this  kind  of  right  in  respect  to  the  Delaware.  The  act  of  8th 
February,  1804;  (4  Sm.  L.  119,)  for  example,  applies  to  the 
Delaware,  the  definition  of  "  pool  or  fishing  place,"  which  the  act 
of  1771  had  enacted  in  reference  to  the  Schuylkill.'] 

Mr.  Tilghman,  on  the  same  side,  cited  3  Kent's  Comm.  329; 
Seymour  v.  Lord  Courtenay,  (5  Burr.  2814 ;)  that  a  several 
fishery  in  England  may  exist  independently  of  the  right  to  the 
soil. 


131  SUPREME  COURT  [Dee.  Term, 

(Hart  v.  Hill.) 

Mr.  Bell  and  Mr.  Edwards  for  the  defendant  in  error.  The 
will  shows  that  the  testator  entertained  as  much  regard  for  his 
"cousin  David  Sanderlin,"  as  for  John  Taylor.  We  contend 
that  his  intention  was  to  give  him  his  whole  interest  and  property 
in  the  fishing  station  or  place  along  the  bank  of  the  river.  The 
terms  of  the  gift,  "  to  him  and  his  heirs  for  ever,"  in  the  first 
place,  furnish  evidence  of  this  intention.  He  would  not  so  have 
granted  a  mere  easement.  It  never  was  supposed  that  the  owner 
of  the  land  upon  a  navigable  river  had  any  right  below  low  water 
mark.  In  1748,  the  term  fishery  was  understood  to  mean  some 
right  in  the  soil  adjacent  to  the  river.  The  deeds  of  the  parties 
under  whom  the  plaintiff  claimed,  show  that  they  so  understood 
it,  since  they  are  bounded  by  "  stakes  and  stones  on  the  bank  of 
the  river."  [KENNEDY,  J.  This  is  universal  in  the  country. 
Surveyors  never  go  into  the  water  for  the  purpose.]  [HusxoN,  J. 
It  has  often  been  decided  that  the  owners  of  land  hold  to  low 
water  mark,  notwithstanding  such  boundaries.]  Then  as  to  the 
question  of  the  original  right.  In  England,  some  jurists  have 
been  of  the  opinion,  that  by  the  grant  of  a  several  fishery,  the 
soil  passes.  We  contend  that  by  a  grant  of  "a  fishing  place," 
the  right  to  the  soil  passes,  unless  it  has  been  expressly  reserved 
by  the  grantor.  3  Kent's'  Com.  410  ;  2*  Black  Com.  39,  40  ; 
Margrave's  Coke  Litt.  note,  181 ;  Thomas'  Co.  Litt.  233,  [199 ;] 
Plowden,  154,  citing  40  Edw.  III. ;  2  Salkeld,  637  ;  F.  N.  B. 
188 ;  Angel  on  Water-courses,  10,  13,  &c.  The  following  acts 
of  Assembly  were  also  cited ;  act  of  23d  February,  1809,  (5  Sm. 
L.  5;)  and  the  act  of  New  Jersey,  adopted  by  it:  act  of  23d 
March,  1819,  (7  Sm.  L.  194 ;)  act  of  27th  March,  1820,  (7  Sm. 
L.  295.) 

Mr.  Tilykman,  in  reply  was  stopped  by  the* court;  whose 
opinion  was  delivered  by 

HUSTON,  J.  This  case  brings  into  the  consideration  of  the 
court,  a  species  of  property,  relating  to  which,  we  have  not  many 
decisions.  Fisheries  for  shad  and  herring  have,  however,  existed 
from  a  very  early  period  ;  and  though  we  have  no  act  of  Assem- 
bly expressly  creating  the  right,  yet  we  have  acts  regulating,  and 
in  some  respects,  restraining  it,  of  an  early  date.  All  those  acts 
re^a^ng  to  *fisheries,  seem  to  apply  to  fisheries  for  tak- 
ing shad ;  or  in  the  Delaware,  perhaps,  shad  and  herring. 
In  fact,  I  do  not  know  that  the  term  fishery,  either  in  any  act  of 
Assembly,  or  in  common  parlance  in  this  state,  is  applied  to  any 
thing  else  than  to  a  place  where  a  seine  or  net  is  drawn,  to  take 
shad  or  herring ;  or  to  a  right  to  fish  with  a  net  or  seine  in  a  par- 
ticular part  of  a  river,  to  take  those  fish  ;  though,  perhaps,  tho?e 


1835.]  OF  PENNSYLVANIA.  132 

(Hart  v.  Hill.) 

who  have  the  exclusive  right  to  a  certain  fishery,  to  take  those 
fish,  may  also  have  the  same  kind  of  right  to  fish  in  the  same 
place  at  all  seasons,  with  a  net,  for  any  kind  of  fish ;  hut  I  have 
not  heard  of  any  contest  as  to  this  matter.  The  right  in  ques- 
tion, arises  under  a  will  dated  in  1748,  and  in  1752  was  recog- 
nized in  the  Orphans'  Court,  on  a  petition  to  divide  the  real 
estate  of  Sanderlin,  the  devisee  ;  a  well  known  kind  of  right, 
which  being  incapable  of  division,  was  allotted  to  one  of  five 
heirs,  in  fee,  subject  to  a  payment  of  an  annual  sum  to  each  of 
the  others ;  and  by  conveyance  or  descent,  became  again  the  sole 
property  of  the  plaintiff. 

Instead  of  going  into  the  black  letter  books,  to  learn  what  was 
a  fishery,  and  a  free  fishery,  and  a  several  fishery,  I  shall  first 
examine  our  own  acts  of  Assembly,  and  see  what  they  have  con- 
sidered it  and  regulated  it;  for  those  regulations  may  show  and 
may  determine  its  nature  ;  and  if  so,  I  am  disposed  to  regard 
them,  even  though  differing  from  old  opinions  in  old  feudal  times. 
Many  acts  on  many  subjects  were  passed  and  in  force  for  a  time, 
which  being  re-enacted  in  a  larger  and  fuller  form,  the  prior  acts 
became  obsolete,  and  are  not  easily  found,  and  in  some  instances 
not  worth  looking  for.  That  fisheries  were  important  in  early 
times,  is  among  other  things  proved  by  an  act  in  1761,  (1  Smith's 
Laws,  231,)  which  in  its  preamble  recites  that  large  quantities  of 
fry  or  brood  of  fish,  and  young  fish  are  destroyed  by  dams,  wiers, 
baskets,  &c.,  &c.,  in  the  Delaware,  Schuylkill,  and  Susquehanna, 
whereby  the  great  quantities  of  fish  which  were  formerly  to  be 
taken  in  said  rivers,  are  greatly  diminished ;  and  then  prescribes 
severe  penalties  against  such  as  violate  its  provisions. 

In  1771,  (1  Sm.  L.  314,)  we  find  an  act  to  regulate  the  fishery 
in  the  river  Schuylkill.  The  first  section  relates  to  the  practice 
which  has  grown  up,  of  drawing  several  seines  or  nets  in  the  same 
pool  or  fishing  place,  and  prohibits  it.  The  second  section  defines 
a  pool ;  "  so  much  of  said  river  as  extends  from  one  side  or  bank, 
to  the  other  side  or  bank  thereof;  and  from  the  place  where 
seines  or  nets  have  been  usually  thrown  in,  to  the  place  where 
they  have  been  usually  taken  out,  shall  be  deemed  and  held,  and 
is  hereby  declared  to  be,  a  pool  or  fishing  place."  It  is  hardly 
necessary  to  remark,  that  it  is  so  much  of  the  river,  &c.  which  is 
the  fishing  place,  and  not  so  much  of  the  bank  as  was  contended, 
in  this  case. 

So  far  nothing  is  said  about  the  owner ;  but  in  the  third  sec- 
tion it  is  provided,  that  when  two  or  more  persons  residing  oppo- 
site to  each  other,  near  the  said  river,  on  different  sides  thereof, 
may  have  *suitable  landing  places  on  their  respect-  r*j33T 
ive  shores,  or  on  an  island  opposite  thereto,  for  taking 
seines  or  nets  out  of  the  pool  or  fishing  place ;  it  shall  be  lawful  for 


133  SUPREME  COURT  \_Dec.  Term, 

(Hart  e.  HU1) 

such  persons  to  fish  with  their  seines  or  nets  alternately,  and  not 
otherwise ;  and  the  act  then  proceeds  to  define  how  this  shall  be 
done.  This  clearly  points  to  the  persons  who  have  a  suitable 
landing  place  on  the  shore,  or  on  an  island,  as  those  who  have  a 
right  to  fish.  This  act  was  to  be  in  force  five  years,  and  was  con- 
tinued in  1776;  and  in  1785,  (2  Sm.  L.  308,)  a  more  full  and 
particular  act  is  found.  The  4th  and  5th  sections  are  transcripts 
of  the  1st  and  2d  above.  The  6th  section  provides  that  "  where 
two  or  more  persons  hold  or  occupy  lands  on  the  same  side  of  the 
river,  adjoining  to  any  pool  or  fishing  place,  nothing  herein  con- 
tained shall  be  construed  to  prevent  or  deprive  any  such  persons 
from  enjoying  the  privilege  of  fishing  in  that  part  of  the  river, 
directly  opposite  their  own  land  respectively,  as  a  separate  pool 
or  fishing  place  ;  the  position  of  which  pool  is  to  be  by  contin- 
uing the  course  of  the  division  line  or  lines  of  the  persons  next 
adjacent ;  and  every  such  division  to  be  subject  to  the  same  rules 
and  regulations  as  other  pools  and  fishing  places  are  by  this  act 
subject."  This  act  contains  several  other  provisions;  and  fixes 
periods  at  which  they  shall  cease  to  fish  for  shad  below  the  Falls, 
and  other  places.  In  this  act  we  find  the  phrase  fishing  for  shad, 
first  mentioned ;  and  a  day  of  the  year  when  they  shall  cease  to 
fish  for  shad. 

Here,  also,  we  first  find  the  words,  " privilege  of  fi shine/  in  that 
part  of  the  river  directly  opposite  their  own  land  respectively,  as 
a  separate  pool  or  fishing  place,"  and  not  as  giving  that  right,  but 
"  nothing  in  this  act  shall  prevent  or  deprive  any  person  of  that 
privilege;"  recognizing  such  rights  as  then  existing,  and  declar- 
ing that  it  was  not  meant  to  impair  it.  Many  other  acts  were 
passed  for  preserving  the  fish  and  regulating  fisheries  in  the 
Schuylkill.  The  precise  nature  and  extent  of  the  rights  of  Penn- 
sylvania and  New  Jersey  over  the  river  Delaware,  were  not  set- 
tled until  1783 ;  and  probably  for  this  reason,  we  find  no  act  reg- 
ulating fisheries  in  the  Delaware  prior  to  that  period ;  though  the 
first  act  cited,  was  to  preserve  the  fish  in  that  and  other  rivers, 
and  the  preamble  stated  that  they  were  not  caught  in  such  quan- 
tities as  formerly. 

In  (4  Dall.  Acts  of  Assembly,  143,)  we  find  the  agreement 
between  the  commissioners  of  the  two  states,  dated  26th  April, 
1783,  ratified  28th  September,  1783. 

The  first  section  of  that  instrument  is  thus — "  It  is  declared 
that  the  river  Delaware,  from  the  station  point,  or  north-west 
corner  of  New  Jersey,  northerly  ;  to  the  place  on  the  said  river 
where  the  insular  boundary  of  the  state  of  Delaware  toucheth  the 
same,  in  the  whole  length  or  breadth  thereof,  is,  and  shall  con- 
tinue to  be  and  remain  a  common  highway,  equally  free  and  open 
to  the  use,  benefit  and  advantage  of  the  said  contracting  parties. 


1835.]        .  OF  PENNSYLVANIA.  133 

(Hart «.  Hill.) 

Provided  nevertheless,  that  each  of  the  legislatures  of  the  said 
states  shall  hold  and  *  exercise  the  right  of  regulating  rj)c1  „.-. 
and  guarding  the  fisheries  on  the  said  river  Delaware, 
annexed  to  their  respective  shores,  in  such  manner  that  the  said 
fisheries  may  not  be  unnecessarily  interrupted,  during  the  season 
of  catching  shad,  by  vessels  riding  at  anchor  on  the  fishing  ground, 
or  by  persons  fishing  under  a  claim  of  a  common  right  on  said 
river" 

On  the  30th  of  March,  1784,  (1  Dall.  Acts,  195,)  we  find  an 
act  to  regulate  fisheries  in  the  rivers  Delaware  and  Lehigh.  The 
2d  section  prevents,  under  a  penalty,  more  than  one  seine  heing 
drawn  in  the  same  pool.  The  3d  section  enacts,  that  "  within  so 
much  of  the  river  Delaware  as  extends  from  the  north-west  corner 
of  New  Jersey,  to  the  place  on  said  river,  where  the  insular  boun- 
dary of  said  river  touches  the  same,  and  within  all  the  islands  be- 
longing to  this  state,  from  the  place  where  a  seine  has  been  usually 
or  shall  be  usually  thrown  in,  to  the  place  where  it  has  usually 
been,  or  shall  be  usually  taken  out,  shall  be,  and  hereby  is  de- 
clared to  be,  a  pool  or  fishing  place  ;"  and  also  contains  many 
other  regulations  of  the  right  of  fishing. 

On  the  7th  of  April,  1786,  (1  Dall.  Acts,  446,)  we  have  a  sup- 
plement to  this  act,  allowing  to  fish  with  two  seines  in  one  pool 
from  the  Falls  at  Trenton,  to  the  line  of  Delaware  state,  and  lim- 
iting the  periods  of  fishing. 

On  the  6th  of  March,  1793,  (3  Sm.  L.  93,)  was  passed,  an  act 
for  the  sale  of  islands  in  the  Delaware,  Susquehanna,  and  other 
navigable  streams.  They  were  to  be  appraised,  in  order  to  ascer- 
tain their  value,  having  regard  to  the  wood,  distance  from  the 
main  land,  and  to  the  advantages  which  may  be  derived  from  the 
same  in  regard  to  fisheries. 

In  1804,  (4  Sm.  L.  118,)  we  find  another  law,  re-enacting  and 
modifying  the  provisions  of  the  act  of  1784  ;  it  again  describes  a 
pool  or  fishing  place  ;  and  in  the  4th  section  directs  that  "  wher- 
ever any  fishery  is  occupied  upon  the  river  Delaware,  within  the 
limits  aforesaid,  (that  is,  as  far  as  it  has  been  declared  a  highway,) 
either  the  land-holder,  tenant  in  possession,  or  some  respectable 
person  appointed  by  the  fishing  company,  shall  give  bond  to 
satisfy  and  pay  any  fines,  for  disobeying  the  provisions  of  the 
law  at  his  or  their  respective  fishery  ;  and  also  file  with  the  pro- 
thonotary  a  description  of  his  or  their  fishing  place,  and  of  the 
township  in  which  it  is  situated."  In  this  act  we  find,  as  before, 
in  the  agreement  with  New  Jersey,  the  word  fishery  used ;  it  also 
supposes  a  fishery  may  be  owned  by  a  fishing  company  ;  and  the 
owner  or  occupier  of  the  shore,  or  some  person  for  that  company, 
must  give  bond  to  the  prothonotary.  This  act  proposes  a  joint 
law  with  Jersey. 


134  SUPREME  COURT  [Dec.  Term, 

(Ilartc.  Hill.) 

On  the  26th  November,  1808,  such  an  act  was  passed  in  Jer- 
sey ;  and  on  the  23d  of  February,  1809,  (5  Sm.  L.  5,  and  fol- 
lowing pages,)  it  is  recited  and  re-enacted  in  this  state.  This  act 
contains  the  substance  of  all  the  former  acts,  and  some  additions 
r*-ioe-|  in  direction  and  *penalties,  and  in  section  10  provides, 
"  That  if  any  person  or  persons  Avhatever  shall  cast  or 
lay  out  any  seine  or  net  into  the  river  Delaware,  within  the  juris- 
diction of  this  state,  beyond  the  right  angle  of  the  shore  and 
where  his  line  strikes  the  river  at  low  water  mark  going  out,  or 
suffer  it  to  swing  beyond  the  right  angle  of  the  shore  of  the 
river,  and  where  his  line  strikes  it  at  the  water  mark  coming  in, 
(except  by  unavoidable  accident)  every  such  person  shall  forfeit 
and  pay,  on  being  legally  convicted  thereof,  the  sum  of  twenty- 
five  dollars  for  each  offence,  and  costs  to  be  paid  to  the  person, 
against  whose  land  such  offence  shall  be  committed;"  and  after 
reciting  that  part  of  the  agreement  between  the  two  states,  before 
copied,  it  proceeds  in  the  llth  section  to  provide,  "  That  if  any 
ship,  vessel,  or  raft  shall,  during  the  season  of  catching  shad  in 
the  Delaware,  come  to  anchor  at  the  same  on  any  fishing  ground, 
where  shad  are  usually  taken,  and  shall  not  immediately  be  re- 
moved from  the  said  fishing  ground,  if  such  removal  can  be  done 
with  safety,  on  application  for  that  purpose  by  the  owner  or  occu- 
pier of  said  fishery,  to  the  captain,  pilot,  or  person  having  com- 
mand of  the  said  ship,  vessel,  or  raft ;  or  if  any  such  vessel  or 
raft  be  wilfully  run  on  shore  on  any  such  fishing  ground,  then 
such  captain,  pilot  or  person  having  the  command  as  aforesaid, 
shall  forfeit  and  pay  sixty  dollars  to  be  recovered  with  costs  by 
the  said  owner  or  occupier. 

In  the  seventh  volume  of  Pennsylvania  Laws,  295,  296,  we 
find  another  law  of  New  Jersey,  re-enacted  in  this  state,  defining 
and  limiting  the  right  of  fishing  on  islands  and  sand  bars  in  the 
Delaware,  to  be  within  lines  drawn  from  the  upper  and  lower 
points  of  said  island,  at  right  angles,  to  a  base  line  from  the  upper 
to  the  lower  point  of" said  island  ;  and  permitting  the  net  to  swing 
below  the  lower  line  only,  where  there  is  no  fishery  below  and  ad- 
joining. 

Before  proceeding  to  draw  conclusions  as  to  the  nature  and 
extent  of  the  right  of  fishing  with  a  seine  in  the  Delaware,  it 
will  be  proper  to  notice  two  cases  in  our  own  reports  ;  (Carson 
v.  Blazer,  and  Shrunk  v.  The  Schuylkill  Navigation  Company,} 
and  it  will  strike  every  one  that  there  are  several  laws,  and 
different  provisions  in  those  laws,  as  regards  different  rivers. 
When  Carson  v.  Blazer,  was  tried  before  the  Circuit  Court,  no 
law  to  regulate  fisheries  in  the  Susquehanna  had  been  enacted. 
Several  will  be  found  since  ;  the  provisions  in  which  have  made 
the  law  in  that  river  very  different  from  the  positions  decided  in 


1835.]  OF  PENNSYLVANIA.  135 

(Hartfl.  Hill.) 

that  case  ;  and  evidently,  the  enactments  to  the  Schuylkill  and 
Delaware  were  not  considered  as  applicable  to  that  case,  for  they 
were  not  adverted  to. 

The  case  of  Shrunk  v.  The  Schuylkill  Navigation  Company, 
decided  a  matter  totally  different  from  the  point  trying  in  the 
case  before  us.  When  the  Delaware  was  declared  a  navigable 
stream  and  public  highway  from  the  southern  to  the  northern 
line  of  the  state,  such  declaration  gave  certain  rights  and  privil- 
eges to  all  persons  *  passing  in  ships,  boats,  or  rafts  ;  r^.-.  qfi-, 
and  left  in  the  state  the  power  to  regulate  such  naviga-  L 
tion,  and  to  improve  such  navigation  in  any  way,  which  would 
seem  to  the  government  of  the  state,  to  be  for  the  interest  of  the 
state.  Several  laws  had  been  enacted,  forbidding,  under  severe 
penalties,  any  individuals  from  erecting  dams,  wiers,  &c.,  within 
the  bed  of  the  Schuylkill,  which  would  injure  the  navigation  or 
passage  of  fish.  At  length  a  law  was  passed  to  improve  the  navi- 
gation, and  to  render  the  water  of  that  stream  of  general  and 
permanent  utility ;  but  this  was  alleged  as  an  injury  to  Shrunk's 
fishery.  The  decision  was  that  the  state  had,  though  no 
unauthorized  individual  had,  a  right  to  improve  the  navigation 
and  render  it  a  public  advantage  and  benefit,  even  though  some 
of  the  privileges  and  conveniences  of  those  on  its  banks  were  im- 
paired. The  present  is  a  different  question ;  it  is  one  between 
two  citizens,  in  which  the  primary  object,  free  navigation  by  all, 
or  what  the  s.tate  may  do,  to  improve  that  navigation,  is  not  in 
question. 

The  right  of  one  person  to  draw  a  seine  in  a  particular  part  of 
the  Delaware,  is  not  inconsistent  with  the  right  which  every 
person  has  to  navigate  his  vessel  in  the  same  part  of  the  river, 
in  the  course  of  his  business.  I  shall  not  go  farther  back  than  is 
necessary  to  ascertain  the  origin  or  nature  of  a  right  to  fishing  in 
the  Delaware,  and  confine  my  remarks  to  a  fishery  in  that 
river.  This  case  shows  that  the  people  and  the  courts,  recog- 
nized, without  dispute,  a  right  of  fishery  in  1745  and  1752  ;  we 
may  say  it  was  well  known  a  century  back.  The  act  of  1761 
states,  that  owing  to  the  destruction  of  young  shad  in  fish  baskets, 
&c.,  the  quantity  was  greatly  less  than  had  been  taken  in  former 
times. 

All  the  laws  regulating  fisheries  in  the  Delaware,  as  well  as 
the  agreement  between  Pennsylvania  and  New  Jersey,  before 
cited,  are  predicated  of  the  idea  of  separate  fisheries  existing ; 
and  the  agreement  expressly  stipulates,  that  the  states  shall  hold 
and  exercise  the  right  of  regulating  the  fisheries  in  the  river 
Delaware,  annexed  to  their  respective  shores,  in  such  manner 
that  the  fisheries  shall  not  be  unnecessarily  interrupted  during 
the  season  of  catching  shad,  by  vessels  riding  at  anchor  on  the 


136  SUPREME  COURT  [Dee.  Term, 

(Hartt).  Hill.) 

fishing  grounds,  or  by  persons  fishing  under  a  claim  of  common 
riyht  in  said  river.  It  is  riot  easy  to  see  how,  after  this  solemn 
treaty  between  these  two  states,  any  person  can  allege  that  each 
fishery  was  not  a  separate  fishery,  and  that  any  person  had,  or 
could  have,  a  right  to  fish,  under  a  claim  of  common  right. 
Neither  state  could  grant  such  common  right  to  fish  in  any  and 
every  part  of  that  river ;  neither  where  the  tide  flowed  or  did 
not  flow.  But  if  this  was  not  explicit  enough,  the  act  passed  by 
both  states  in  1808-9,  removes  all  possibility  of  doubt.  It  ex- 
pressly prohibits  every  person  from  throwing  out  a  net  above, 
or  drawing  it  in,  or  even  letting  it  swing  below  his  own  line  on 
land.  Fisheries,  then,  existed  long  ago  ;  by  grant  or  sufferance,. 
I  care  not  which.  The  state  had  a  right  to  regulate  fish- 
ei>ies>  *aud  has  regulated  them  and  bound  itself  by 
treaty  to  regulate  them,  and  has  complied  with  the 
treaty.  No  man  can  be  interrupted  in  his  fishery  opposite  his 
own  land,  with  impunity ;  and  he  who  does  interrupt  such  fishery, 
is  tried,  convicted,  and  sentenced  to  pay  a  fine,  and  forfeits  his 
seine  or  net.  But  further,  this  act  recognizes,  that  a  fishery 
may  belong  to  the  owner  of  the  shore  opposite  to  it,  or  to  some 
other  person,  or  to  a  company,  who  are,  by  a  respectable 
person,  to  give  bond  to  conform  to  the  law,  and  to  pay  alt 
penalties  if  they  violate  it.  The  plaintiff  lias  shown  such  right 
of  fishery ;  but  still  matters  were  disputed  at  the  trial  of  the 
cause,  and  here  also.  And  first,  a  fishery  is  in  the  river,  and  i& 
not  the  space  between  high  and  low  water  mark,  though  the  use 
of  that  space  may  be  necessary  in  the  use  of  it,  and  may  be  in- 
cluded in  the  term  fishery.  The  men  employed  in  carrying  the 
rope  attached  to  one  end  of  the  seine,  may  walk  on  the  space  be- 
tween high  and  low  water  mark ;  and  on  the  same  space 
may  place  logs,  or  boards,  or  stone,  to  make  what  is  called 
a  pound,  Into  which  to  throw  the  fish  when  taken  out  of  the  net,, 
and  on  that  space  do  all  that  has  been  usual  and  is  necessary  to 
the  use  of  a  fishery  ;  but  the  right  to  a  fishery  does  not  of  itself 
imply  a  fee  simple  in  such  space,  between  high  and  low  water  op- 
posite the  fishery  ;  nor  does  it  lessen  or  impair  the  right  of  the 
owner  of  the  land  opposite,  except  so  far  as  is  necessary  to  the 
use  of  the  privilege  of  the  fishery. 

The  right  of  the  owner  of  land  opposite  and  adjoining  a  navi- 
gable river,  down  to  the  water's  edge,  has  been  too  often  and 
solemnly  decided  to  be  questioned ;  *  though  this  right  is  not 
in  all  respects  the  same  as  to  the  main  land  above  the  bank ;  for 
in  high  tide,  or  high  floods,  a  vessel  or  raft  may  sail  over  it, 
or  fasten  to  the  shore  in  a  storm,  or  any  case  of  necessity  ;  but 

*  See  2  Wharton,  538. 


1835.]  OF  PENNSYLVANIA.  137 

(Hart  v.  Hill.) 

the  owner  has  the  right  and  sole  right  to  quarry  stones  or  take 
gravel  ahove  low  water  mark,  and  the  sole  right  to  use  it  and 
the  river  opposite  as  a  fishery,  unless  the  right  of  fishery  has 
heen  separated  from  the  land ;  in  which  case,  the  right  of  fishery 
gives  it  the  use  of  it  so  far  as  is  necessary,  and  has  been  used 
in  the  fishery,  and  no  farther.  The  owner  of  the  land  may  still, 
even  in  the  fishing  season,  drive  his  cattle  over  it  to  water,  or 
do  any  other  act  which  does  not  injure  or  impede  the  use  of  the 
fishery.  But  he  must  not,  even  out  of  fishery  season,  do  any 
act  which  will  injure  or  destroy  the  fishery.  "When,"  the 
court  say,  "the  devise  of  David  Sanderlin,  is  of  the  fishing 
place,  to  him,  his  heirs  and  assigns  for  ever ;  when  we  consider 
that  the  testator  had  no  sort  of  dominion  over  any  thing  beyond 
low  water  mark,  and  that  his  fishing  place,  if  he  had  one,  must 
necessarily  be  within  that  line,  and  a  part  of  the  land  that 
would  otherwise  be  included  within  John  Taylor's  devise,  it 
would  be  hazardous  to  say  a  fee  simple  did  not  pass  to  David 
Sanderlin,  but  merely  an  easement  over  the  land  of  John  Taylor. 
Christopher  Taylor,  owning  and  occupying  land  bounded  by  the 
river  Delaware,  like  all  other  owners  of  *land  on  our  r*-joo-j 
principal  rivers,  had  no  exclusive  privilege  or  right  to  ' 
fish  below  low  water  mark  opposite  to  his  bank ;  that  right  re- 
mained in  the  state,  and  unless  restrained  by  its  laws,  was 
common  to  every  person  in  the  state;  he  could  neither  grant 
nor  devise  any  thing  except  within  low  water  mark,"  &c.  We 
think  this  was  said  without  a  due  examination  of  the  treaty  with 
New  Jersey,  and  the  acts  of  Assembly  cited.  A  pool,  or  fishing 
place — a  fishery  is  in  the  river ;  rafts,  boats,  or  vessels,  are  not 
to  cast  anchor  in  it ;  the  seine  or  net  is  cast  out  in  the  river ;  it 
is  drawn  through  the  river ;  it  swings  in  the  river ;  and  the 
owner  of  the  shore  has  the  right,  and  sole  right,  unless  he  has 
parted  with  it,  to  fish  with  nets  opposite  his  land;  the  owner 
below  cannot  come  a  foot  above  the  right  angle  from  dividing 
point ;  the  owner  above  cannot  even  let  his  net  swing  below  the 
line  from  the  dividing  point,  and  no  person  can  come  there  and 
fish  under  a  claim  of  common  right.  Originally,  it  was  a  privi- 
lege, or  franchise  appurtenant  to  the  shore  ;  but  may  be  leased, 
sold,  or  devised  to  a  person  not  owning  the  land  on  the  shore ; 
and  such  lessee,  devisee,  or  purchaser,  has  no  other  right  to  the 
adjacent  land  than  is  necessary  to  the  full  use  of  the  fishery. 
The  fee  simple,  and  all  other  rights  not  inconsistent  with  the  use 
of  fishery,  may  remain  in  the  owner  of  the  land  adjoining  the 
river,  opposite  to  the  fishery. 

Clearly,  for  a  direct  interruption  while  actually  fishing,  trespass 
may  lie ;  there  may  be  acts  injurious  to  the  fishery,  for  which 
care  may  be  the  proper  remedy.  The  case,  as  exhibited  to  us, 


138  SUPREME  COURT  [Dec.  Term, 

(Sharp  v.  Thompson.) 

does  not  show  what  was  done  by  the  defendant,  what  acts  are 
complained  of,  and  we  can  only  say  that  for  a  direct  interruption, 
trespass  is  a  proper  action. 

Let  it  be  distinctly  understood  that  this  opinion  relates  only  to 
the  right  of  citizens  to  interfere  with  a  fishery.  What  right  the 
state  of  Pennsylvania  and  New  Jersey  jointly  have  to  change  the 
channel  of  the  river ;  to  build  dams  in  it ;  to  draw  off  its  waters, 
&c.,  &c.,  even  though  this  should  affect  fisheries,  I  have  said 
nothing  about. 

Judgment  reversed,  and  a  venire  de  novo  awarded. 

Cited  by  Counsel,  2  Wharton,  536  ;  9  Watts,  232 ;  10  Id.  65  ;  8  Watts  & 
Sergeant,  442 ;  I  Barr,  313  ;  7  Id.  191. 
Cited  by  the  Court,  8  Watts,  476 ;  2  Harris,  518 ;  6  Wright,  228. 


[•PHILADELPHIA,  JANUARY  25,  1836.]  [*139] 

SHARP  against  THOMPSON. 

IN  ERROR. 

1.  A  testator  devised  as  follows  : — "I  give  to  my  son,  T.  N.,  all  my  house 
and  lot  situate  in  Spruce  street,  Philadelphia,  as  soon  as  he  shall  arrive 
at  the  age  of  twenty-one  years,  him  and  his  lawful  heirs  for  ever ;  and 
in  case  of  his  death,  without  lawful  issue,  th,en  said  house  and  lot  to  be 
sold  to  the  best  advantage,  and  the  amount  thereof  equally  divided 
among  my  surviving  children."     Held,  that  T.  N.  took  an  estate  tail. 

2.  A  tenant  in  tail  by  indenture  of  bargain  and  sale,  dated  the  23d  of 
November,  1797,  and  acknowledged  on  the  24th  of  the  same  month,  in 
consideration  of  $2218,  conveyed  the  estate  to  B.  and  C.,  his  wife,  their 
heirs  and  assigns,  with  a  covenant  for  further  assurance.     By  another 
deed  of  bargain  and  sale,  dated  the  24th  of  November,  1797,  and  ac- 
knowledged on  the  same  day,  A.,  in  consideration  of  five  shillings,  and 
for  the  purpose  of  barring  the  estate  tail,  &c.,  conveyed  the  same  estate 
to  B.  and  his  heirs,  to  the  intent  and  purpose  fchatB.  should  become  ten- 
ant of  the  freehold,  and  to  be  seized  thereof,  until  a  common  recovery, 
with  single  voucher,  should  be  had,  &c.,  and  it  was  covenanted  that  A. 
should,  before  the  end  of  the  next  term,  permit  and  suffer  B.  to  sue  forth 
a  writ  of  entry,  &c.,  against  him  (A.)  in  the  Court  of  Common  Pleas, 
&c.,  so  that  judgment  might  be  thereupon  had  against  him  (A.),  &c. ; 
and  the  uses  of  the  said  recovery  were  declared  to  be,  that  B.  and  his 
heirs  should  stand  seized  of  the  premises,  to  the  use  of  the  said  B.,  his 
heirs  and  assigns,  &c.     On  the  same  24th  of  November,  A.,  by  a  letter 
of  attorney,  reciting  that  he  was  about  to  proceed  on  a  voyage  by  sea, 
appointed  two  persons  his  attorneys,  to  appear  for  him  in  the  said  re- 
covery, declaring  the  same  and  the  uses  thereof  as  in  the  last  mentioned 
deed.     A  writ  of  entry,  sur  disseisin,  &c.,  tested  the  9th  of  December, 
1797,  issued,  at  the  suit  of  B.,  demandant,  against  A.,  tenant,  returnable 
at  the  March  term  following  of  the  Court  of  Common  Pleas ;  at  which 


1835.]  OF  PENNSYLVANIA.  139 

(Sharp  V.  Thompson.) 

term  a  common  recovery,  with  single  voucher,  was  suffered  ;  and  a  writ 
of  seisin,  tested  the  9th  of  March,  1798,  issued  accordingly.  On  the  19th 
of  December,  1797,  B.,  with  C.  his  wife,  in  consideration  of  §2218,  con- 
veyed the  premises  to  D.  in  fee.  In  an  ejectment,  (instituted  in  1829)  by 
the  heir  in  tail  of  A.,  against  a  purchaser  under  D.,  it  was  held,  that  the 
second  deed  was  to  be  considered  a  nullity  ;  that  the  first  deed  was  to  be 
taken  as  declaring  the  uses  of  the  recovery  ;  and  that  the  recovery  was 
well  suffered,  and  operated  to  vest  the  estate  in  B.  and  his  wife,  to  the 
use  of  their  vendee. 

THIS  was  a  writ  of  error  to  the  District  Court  for  the  City  and 
County  of  Philadelphia,  to  remove  the  record  of  an  action  of 
ejectment,  brought  by  Samuel  Thompson  and  Ann,  his  wife,  (in 
right  of  the  said  Ann,)  against  Hannah  Taylor,  to  recover  posses- 
sion of  a  house  and  lot  of  ground  in  Spruce  street,  near  Second 
street,  in  the  City  of  Philadelphia. 

Samuel  Thompson  and  Hannah  Taylor  both  died  after  the  com- 
mencement of  the  suit. 

On  the  trial,  in  the  court  below,  a  special  verdict  was  rendered, 
finding  the  following  facts,  viz :  * 

"  That  Thomas  Newark,  sen.,  died  on  the  day  of  Decem- 

ber, 1786,  seized  in  fee  of  a  certain  house  and  lot  in  Spruce 
*street,  in  the  City  of  Philadelphia — the  premises  for  I^-MAT 
the  recovery  of  which  the  action  is  brought — having 
first  made  his  will,  dated  the  12th  of  December,  1786.  Probate 
of  which  was  duly  made  by  the  executors,  therein  named,  on  the 
29th  of  December,  1786. 

That  Thomas  Newark,  Jr.,  one  of  the  sons  of  the  testator 
aforesaid,  and  one  of  his  devisees,  died  about  the  year  1807, 
leaving  a  widow,  Christiana  Sleet,  and  one  child,  Ann,  the 
plaintiff.  That  the  said  Thomas  Newark,  Jr.,  was  married  to 
the  said  Christiana,  on  the  18th  of  July,  1801.  That  the  said 
Thomas  Newark,  Jr.,  was  twenty-seven  years  old,  when  he 
married  as  aforesaid,  and  that  when  thus  married  he  lived  there- 
after six  years.  That  the  said  Ann,  the  plaintiff,  was  born  on 
the  13th  of  July,  1803 ;  and  was  married  five  years  before  Sep- 
tember, 1830. 

That  a  certain  deed,  dated  the  23d  of  November,  1797,  was 
made  by  the  said  Thomas  Newark,  Jr.,  to  Samuel  Guthrie,  and 
Hannah  his  wife,  which  said  Hannah  is  the  aforesaid  Hannah 
Taylor. 

That  a  certain  deed,  dated  the  24th  of  November,  1797,  was 
made  by  the  said  Thomas  Newark,  Jr.,  to  Samuel  Guthrie. 

That  a  certain  deed,  dated  the  19th  of  December,  1797,  was 
made  by  the  said  Samuel  Guthrie  and  Hannah,  his  wife,  to  John 
Stapler  Littler. 

That  a  certain  deed,  dated  the  23d  of  July,  1803,  was  made 
by  the  said  John  S.  Littler  and  wife,  to  Robert  Smith  in  trust. 


140  SUPREME  COURT.  [Dec.  Term, 

(Sharp  v.  Thompson.) 

That  a  common  recovery  was  suffered  to  March  term,  1798, 
wherein  Samuel  Guthrie  was  demnadant,  and  Thomas  Newark, 
Jr.,  was  tenant. 

That  the  conveyances,  namely,  the  deeds  and  the  common  re- 
covery aforesaid,  were  conveyances  of  the  premises  aforesaid  ;  for 
the  recovery  of  which  this  action  is  brought." 

The  clause  in  the  will  of  Thomas  Newark,  relating  to  the  pro- 
perty in  question,  was  as  follows : 

"  Also:  I  give  to  my  son,  Thomas  Newark,  all  my  house  and 
lot,  situate  in  Spruce  street,  Philadelphia,  (now  in  the  tenure  of 
Abraham  G.  Claypoole,)  as  soon  as  he  shall  arrive  at  the  age  of 
twenty-one  years,  him  and  his  lawful  heirs  for  ever ;  and  in  case 
of  his  death  without  lawful  issue,  then  said  house  and  lot  to  be 
sold  to  the  best  advantage,  and  the  amount  thereof  equally 
divided  among  my  surviving  children,  except  my  daughters, 
before  mentioned,  each  of  whom  are  to  have  only  one-half  as 
much  as  each  of  my  sons." 

The  deed  of  the  23d  November,  179T,  referred  to  in  the  special 
verdict,  was  as  follows: 

"  This  indenture,  made  the  23d  day  of  November,  in  the  year 
r*14.n  °^  *  our  Lord  one  thousand  seven  hundred  and  ninety - 
J  seven,  between  Thomas  Newark  of  the  City  and  County 
of  Philadelphia,  mariner,  of  the  one  part,  and  Samuel  Guthrie, 
of  the  same  place,  merchant,  and  Hannah,  his  wife,  of  the  other 
part,  witnesseth ;  that  the  said  Thomas  Newark,  for,  and  in  con- 
sideration of,  the  sum  of  two  thousand  two  hundred  and  eighteen 
dollars  and  seventy-nine  cents,  lawful  money,  to  him  at  or  before 
the  sealing  and  delivery  hereof,  by  the  said  Samuel  Guthrie,  and 
Hannah  his  wife,  well  and  truly  paid,  the  receipt  whereof  is 
hereby  acknowledged,  hath  granted,  bargained,  sold,  aliened,  re- 
leased and  confirmed,  and  by  these  presents  doth  grant,  bargain, 
sell,  alien,  release,  and  confirm  unto  the  said  Samuel  Guthrie, 
and  Hannah  his  wife,  their  heirs  and  assigns,  all  that  messuage 
or  tenement,  and  lot  or  piece  of  ground  now  in  tenure  of  the  said 
Samuel  Guthrie  and  wife,  situate  on  the  south  side  of  Spruce 
street,  between  Delaware,  Second  and  Third  streets,  in  the  said 
City  of  Philadelphia ;  containing  in  breadth  eighteen  feet,  and  in 
length  or  depth  fifty-one  feet;  bounded  eastward  by  ground 
formerly  of  Nathaniel  Allen,  deceased ;  southward,  by  ground 
formerly  of  Henry  Badcock,  deceased ;  westward,  by  a  messuage 
and  lot  formerly  of  Joseph  Webb,  and  since  of  George  Wells ; 
and  northward  by  Spruce  street  aforesaid.  [It  being  the  same 
messuage,  lot  and  premises  which  John  Morris,  of  the  district  of 
Southwark,  Gent.,  by  indenture,  dated  the  2d  day  of  January, 
1782,  recorded  Book  No.  6,  page  213,  granted  unto  Thomas 
Newark,  the  father  of  the  said  Thomas,  party  hereto  in  fee,  sub- 


1835.]  OF  PENNSYLVANIA.  141 

(Sharp  v.  Thompson.) 

ject  to  a  yearly  rent  charge-  of  three  pounds  twelve  shillings,  law- 
ful money,  payable  to  Nathaniel  Allen,  his  heirs  and  assigns,  on 
the  25th  day  of  March,  yearly,  for  ever  ;  and  which  premises, 
the  said  Thomas  Newark,  the  father,  by  his  last  will  and  testa- 
ment in  writing,  dated  the  12th  day  of  December,  1786,  and 
proved  and  remaining  in  the  register's  office  at  Philadelphia,  de- 
vised unto  the  said  Thomas  Newark  (his  son)  party  hereto,  and 
his  lawful  heirs  for  ever.]  Together  with  all  and  singular,  the 
ways,  waters,  water-courses,  rights,  privileges,  improvements, 
members  and  appurtenances  whatsoever  thereunto  belonging,  and 
the  reversions  and  remainders,  rents,  issues,  and  profits  thereof, 
and  all  the  estate,  right,  title,  interest,  property,  claim  and  de- 
mand whatsoever,  of  him  the  said  Thomas  Newark,  and  his  heirs 
in  law  and  equity,  of,  in,  and  to  the  same.  To  have  and  to  hold, 
all  the  said  messuage,  tenement,,  lot  or  piece  of  ground,  heredita- 
ments, and  premises  hereby  granted  or  mentioned  tso  to  be,  with 
the  appurtenances,  unto  the  said  Samuel  Guthrie,  and  Hannah 
his  wife,  their  heirs  and  assigns,  to  and  for  the  only  proper  use 
and  behoof  of  the  said  Samuel  Guthrie,  and  Hannah  his  wife, 
their  heirs  and  assigns  for  ever  ;  under  and  subject,  nevertheless, 
to  the  payment  of  the  aforesaid  yearly  rent  charge  of  three  pounds 
twelve  shillings,  lawful  money,  so  as  the  same  rent  from  and  after 
the  date  *of  these  presents,  shall  accrue  and  become  due  r*i4.o-i 
and  payable  for  ever ;  but  free  and  clear  of  and  from  all 
other  incumbrances  whatsoever.  And  the  said  Thomas  Newark, 
for  himself,  his  heirs,  executors  and  administrators,  doth  hereby 
covenant,  promise  and  grant,  to  and  with  the  said  Samuel  Guthrie, 
and  Hannah  his  wife,  their  heirs  and  assigns,  in  manner  follow- 
ing, that  is  to  say,  that  he,  the  said  Thomas  Newark,  and  his 
heirs,  all  the  said  messuage,  tenement,  lot  or  piece  of  ground, 
hereditaments  and  premises,  hereby  granted  or  mentioned,  so  to 
be  with  the  appurtenances,  unto  the  said  Samuel  Guthrie,  and 
Hannah  his  wife,  their  heirs  and  assigns,  under  and  subject  as 
aforesaid,  against  him,  the  said  Thomas  Newark,  and  his  heirs, 
and  against  all  and  every  other  person  and  persons  whatsoever, 
lawfully  claiming  or  to  claim,  by,  from,  or  under  him,  or  them, 
or  any  of  them,  shall  and  will  warrant  and  for  ever  defend  ;  and 
further,  that  he  the  said  Thomas  Newark,  and  his  heirs,  shall 
and  will  at  any  time  hereafter,  at  the  request  of  the  said  Samuel 
Guthrie,  and  Hannah,  his  wife,  their  heirs  and  assigns,  make,  do, 
execute,  acknowledge  and  deliver,  or  cause  to  be  made,  execut  d  and 
delivered,  all  such  further  and  other  act  and  acts,  deed  or  deeds, 
conveyances  and  assurances  in  the  law  whatsoever,  for  the  better 
and  more  perfect  assuring  and  confirming  the  fee  simple  and 
inheritance  of  the  said  messuage,  lot  of  ground  and  premises, 
with  the  appurtenances,  subject  to  the  rent  charge  aforesaid,  unto 
VOL.  I.— 10. 


142  SUPREME  COURT  [Dec.  Term, 

(Sharp  v.  Thompson.) 

the  said  Samuel  Guthrie,  and  Hannah  his  wife,  their  heirs  and 
assigns,  as  counsel  learned  in  the  law  shall  reasonably  advise  and 
require.  In  witness  whereof,  the  said  parties  have  interchange- 
ably set  their  hands  and  seals  hereunto.  Dated  the  day  and  year 
first  above  written. 

THOMAS  NEWARK,  [L.  s.] 
Sealed  and  delivered  in  the 

presence  of  us, 

ABRM.  SHOEMAKER, 

JOEL  RICHARDSON. 

Received  the  day  of  the  date  of  the  above  written  indenture,  of 
the  above  named  Samuel  Guthrie,  and  Hannah  his  wife,  the 
sum  of  two  thousand  two  hundred  and  eighteen  dollars  and 
seventy-nine  cents,  being  the  full  consideration  moneys  above 
mentioned. 

THOMAS  NEWARK. 
Witness  at  signing, 

ABRM.  SHOEMAKER, 
JOEL  RICHARDSON. 

The  twenty -fourth  day  of  November,  A.  D.  1797,  before  me,  the 
subscriber,  one  of  the  Justices  of  the  Peace,  for  the  County  of 
Philadelphia,  came  the  within  named  Thomas  Newark,  and 
acknowledged  the  within  written  indenture  to  be  his  act  and 
deed,  *and  desired  the  same  to  be  recorded  as  such. 
Witness  my  hand  and  seal. 

JOSEPH  BIRD,  [L.  s.] 

Recorded  in  the  Office  for  Recording  of  Deeds,  &c.,  for  the  City 
and  County  of  Philadelphia,  in  Deed  Book  E.  F.,  No.  16, 
page  705. 

Witness  my  hand  and  Seal  of  Office,  this  20th  day  of 
November,  1804. 

EDWARD  Fox,  Recorder" 

The  deed  of  the  24th  of  November,  1797,  referred  to  in  the 
special  verdict,  began  as  follows: — "This  indenture  made  the 
24th  day  of  November,  in  the  year  of  our  Lord  1797,  between 
Thomas  Newark,  of  the  City  and  County  of  Philadelphia,  mariner, 
of  the  one  part,  and  Samuel  Guthrie,  of  the  same  place,  mer- 
chant, of  the  other  part."  It  then  recited  the  conveyance,  by 
John  Morris  to  Thomas  Newark,  the  father  of  the  grantor,  and 
the  will  of  Thomas  Newark,  the  father,  setting  forth,  verbatim, 
the  clause  of  the  will,  before  mentioned,  and  then  proceeded  as 
follows  : 

"  Now  this  indenture  witnesseth,  that  the  said  Thomas  Newark, 
party  hereto,  for  the  docking,  barring  and  cutting  off  all  estates 


1835.]  OF  PENNSYLVANIA.  143 

(Sharp  v.  Thompson.) 

tail,  and  remainders  in  tail,  of  and  in  the  said  premises,  and  for 
the  settling  and  assuring  the  same,  to  and  for  the  uses  and  pur- 
poses hereinafter  limited,  expressed  and  declared,  and  in  consid- 
eration of  the  sum  of  five  shillings  to  him  paid  by  the  said 
Samuel  Guthrie,  at  the  time  of  the  execution  hereof,  the  receipt 
whereof  is  hereby  acknowledged,  hath  and  hy  these  presents 
doth  grant,  bargain  and  sell  to  the  said  Samuel  Guthrie,  his  heirs 
and  assigns,  all  that  the  aforesaid  messuage  or  tenement,  and  lot 
or  piece  of  ground,  situate,  hounded  and  being  as  above  described, 
containing  in  breadth  eighteen  feet,  and  in  depth  fifty-one  feet, 
together  with  all  the  rights,  privileges,  hereditaments  and  appur- 
tenances whatsoever  thereunto  belonging,  and  the  reversions  and 
remainders,  rents,  issues  and  profits  thereof,  and  also  all  the 
estate,  right,  title,  and  interest  whatsoever,  of  him  the  said 
Thomas  Newark,  party  hereto,  in  law  or  equity,  of,  in,  to,  and 
out  of  the  same  :  to  have  and  to  hold  the  said  messuage  or  tene- 
ment, and  described  lot  or  piece  of  ground  and  premises  hereby 
granted,  with  the  appurtenances,  to  the  said  Samuel  Guthrie  and 
his  heirs  for  ever,  to  the  intent  and  purpose,  that  he,  the  said 
Samuel  Guthrie,  shall  and  may  become  perfect  tenant  of 
the  freehold  of  the  said  premises,  with  the  appurtenances, 
and  shall  stand  and  be  seized  thereof,  until  a  good  and  perfect 
common  recovery,  with  single  voucher  over,  may  be  had,  suffered 
and  executed,  of  the  same,  according  to  the  usual  course  of  com- 
mon recoveries,  for  the  assurance  of  lands  and  tenements,  in  such 
case  *used  and  accustomed;  and  thereupon  it  is  hereby  r*  144-1 
covenanted  and  concluded  and  agreed,  by  and  between 
the  said  parties  hereto,  for  themselves  and  their  respective  heirs, 
in  manner  following,  that  is  to  say,  that  the  said  Thomas  Newark, 
party  hereto,  shall  and  will,  before  the  end  of  December  term 
next  coming,  permit  and  suffer  the  said  Samuel  Guthrie  to  sue 
forth  and  prosecute  against  him,  the  said  Thomas  Newark,  party 
hereto,  one  writ  of  entry  sur  disseisin  -en  le  post,  returnable  be- 
fore the  justices  of  the  Court  of  Common  Pleas,  for  the  County 
of  Philadelphia,  thereby  demanding  against  the  said  Thomas 
Newark,  party  thereto,  the  premises  aforesaid,  with  the  appur- 
tenances, by  such  name  and  description,  and  in  such  manner  and 
form  as  by  counsel  learned  in  the  law  shall  be  advised.  And 
upon  which,  said  writ  of  entry  so  to  be  sued  forth  and  prosecuted, 
the  said  Thomas  Newark,  party  hereto,  by  himself,  or  by  his  at- 
torney or  attorneys,  shall  appear  gratis,  and  vouch  to  warranty 
Joseph  Fox,  who  shall  appear  and  imparle,  and  afterwards 
make  default,  and  depart  in  contempt  of  the  court,  so  that  judge- 
ment may  be  thereon  had  for  the  said  Samuel  Guthrie,  to  recover 
the  premises  aforesaid,  against  the  said  Thomas  Newark,  party 
hereto,  and  for  the  said  Thomas  Newark,  to  recover  in  value 


144  SUPREME  COURT  [Dec.  Term, 

(Sharp  r.  Thompson.) 

against  the  said  Joseph  Fox,  the  common  vouchee,  to  the  end 
that  one  perfect  common  recovery,  with  single  voucher,  may  be 
thereupon  had  and  suffered,  and  all  and  every  other  thing  and 
things  may  be  done,  needful  and  proper  for  suffering  the  same, 
according  to  the  course  of  common  recoveries  in  such  cases  used  ; 
and  the  same  recovery  is  also  to  be  executed  by  one  writ  of  habere 
facia*  seisinam  accordingly.  And  it  is  hereby  covenanted  and 
agreed,  by  and  between  the  parties  to  these  presents,  for  them- 
selves, and  their,  and  each  of  their  heirs,  that  the  said  recovery 
so  as  aforesaid,  or  in  any  other  manner  to  be  had  and  suffered  of 
the  premises  aforesaid,  shall  be  and  enure  and  shall  be  deemed 
and  adjudged  and  taken,  and  is  meant  and  intended,  and  by  the 
said  parties  to  these  presents,  is  hereby  declared  to  be  and  enure, 
and  the  said  Samuel  Guthrie  and  his  heirs,  from,  and  immediately 
after  the  suffering,  the  same  shall  be  and  stand  seized  of  the  said 
premises,  with  the  appurtenances,  to  and  for  the  only  proper  use, 
benefit  and  behoof  of  the  said  Samuel  Guthrie,  his  heirs  and 
assigns  for  ever,  and  to  and  for  no  other  use,  intent  or  purpose 
whatever.  In  witness  whereof  the  said  parties  have  hereunto  in- 
terchangeably set  their  hands  and  seals.  Dated  the  day  and  year 
first  above  written. 

THOMAS  NEWARK,  [L.  s.] 
SAMUEL  GUTHRIE,  [L.  s.] 
Sealed  and  delivered  in  the 
presence  of  us, 

ABM.  SHOEMAKER, 

JOEL  RICHARDSON,  . 

JOHN  S.  LITTLER. 


r*14'51  ^  November,  Anno  Domini,  1797, 

'  -I  before  me  the  subscriber,  one  of  the  Justices  of  the 
Peace  for  the  County  of  Philadelphia,  personally  appeared 
Thomas  Newark  and  Samuel  Guthrie  above  named,  and  ac- 
knowledge the  above  written  indenture  to  be  their  act  and 
deed,  for  the  uses  and  purposes  therein  mentioned,  and  desired 
the  same  might  be  recorded  as  such.  Witness  my  hand  and 
seal  the  day  and  year  aforesaid. 

JOSEPH  BIRD,  [L.  s.]" 

The  deed  of  the  19th  of  December,  1797,  by  Guthrie  and  wife, 
to  Littler,  and  that  of  the  23d  of  July,  1803,  from  Littler  and 
wife,  to  Smith,  were  not  material,  except  as  evidence  of  the  de- 
fendant's title  —  the  conveyances  being  in  the  ordinary  form. 
The  consideration  expressed  in  the  deed  of  Guthrie  to  Littler, 
was  the  same  as  that  stated  in  the  first  deed  of  Newark  to  Guth- 
rie, viz.  $2221.79. 


1835.]  OF  PENNSYLVANIA.  145 

(Sharp  v.  Thompson.) 

The  proceedings  in  relation  to  the  -common  recovery,  were  as 
follows : 

On  the  24th  of  November,  1797,  Thomas  Newark,  by,  deed 
poll  reciting,  that  he  was  about  to  proceed  to  sea,  "  and  being 
desirous  that  a  common  recovery  may  be  suffered  of  my  estate, 
hereinafter  mentioned,"  constituted  Robert  Porter,  of  the  City 
of  Philadelphia,  attorney  at  law,  and  Abraham  Shoemaker,  of 
the  same  city,  conveyancer,  jointly  and  severally,  his  true  and 
lawful  attorney,  for  the  following  purposes,  viz. : — "  For  me,  and 
in  my  name,  to  appear  before  the  Justices  of  the  Court  of  Com- 
mon Pleas,  for  the  County  of  Philadelphia,  before  the  end  of 
December  term  next,  or  any  other  term  after  the  date  hereof, 
and  permit  and  suffer  Samuel  Guthrie,  of  the  said  city,  merchant, 
to  sue  forth  and  prosecute  against  me,  the  said  Thomas  Newark, 
one  writ  of  entry  sur  disseisin  en  le  post,  returnable  before  the 
said  Justices  of  the  Court  of  Common  Pleas  for  the  County  of 
Philadelphia,  thereby  demanding  against  me,  the  said  Thomas 
Newark,  all  that  messuage  or  tenement,  and  lot  or  piece  of 
ground  thereunto  belonging,  situate  on  the  south  side  of  Spruce 
Street,  between  Delaware  Second  and  Third  Streets,  in  the  said 
city,  with  the  appurtenances,  which,  in  the  testament  and  last 
will  of  my  father,  Thomas  Newark,  deceased,  dated  the  12th  of 
December,  1786,  is  devised  to  me  in  fee  tail ;  by  such  name  and 
description,  and  in  such  manner  and  form,  as  by  counsel  learned 
in  the  law  shall  be  advised ;  and  upon  which  said  writ  of  entry 
so  to  be  sued  forth  and  prosecuted  against  me,  the  said  Thomas 
Newark,  to  appear,  gratis,  and  vouch  to  warranty  Joseph  Fox, 
who  shall  appear  and  imparle,  and  afterwards  make  default  and 
depart  in  contempt  of  the  court,  so  that  judgment  may  be  there- 
upon had  for  the  said  Samuel  Guthrie,  to  recover  the  premises 
aforesaid  against  me,  the  said  Thomas  Newark,  and  for  r*i4g-i 
*me  to  recover  in  value  against  the  said  Joseph  Fox, 
the  common  vouchee ;  to  the  end  that-  one  perfect  common  re- 
covery, with  single  voucher,  may  be  thereupon  had  and  suffered, 
and  all  and  every  other  thing  and  things  may  be  done,  needful 
and  proper  for  suffering  the  same,  according-  to  the  course  of 
common  recoveries,  in  such  cases  used ;  and  the  same  recovery 
is  also  to  be  executed  by  one  writ  of  habere  facias  seisinam  ac- 
cordingly; and  the  said  recovery  so  as  aforesaid,  or  in  any 
other  manner  to  be  had  and  suffered  of  the  premises  aforesaid, 
shall  be  and  enure,  and  shall  be  deemed,  adjudged  and  taken, 
and  is  hereby  meant,  intended,  and  declared  to  be,  and  enure, 
from  and  immediately  after  suffering  the  same,  to  and  for  the 
only  proper  use,  benefit,  and  behoof  of  him,  the  said  Samuel 
Guthrie,  his  heirs  and  assigns  forever,  and  to  and  for  no  other 
use,  intent  or  purpose  whatever:  and  in  case  the  said  recovery 


146  SUPREME  COURT  [Dec.  Term, 

(Sharp  v.  Thompson.) 

cannot  be  so,  as  aforesaid,  suffered  and  executed  of  the  said 
premises  at  the  time  aforesaid,  I  do  hereby  authorize  and  fully 
empower  my  said  attorneys,  jointly  and  severally,  to  appear  for 
me,  and  in  my  name,  before  any  Court  or  Courts  of  record  in 
Pennsylvania,  in  any  term  after  the  date  hereof,  and  there 
permit  and  suffer  any  person  or  persons  whatsoever,  to  sue  forth 
and  prosecute  against  me  one  or  more  writ  or  writs  of  entry, 
tsur  disseisin  en  le  post,  returnable  before  the  justices  of  the  said 
court  or  courts,  demanding  the  premises  aforesaid,  so  .that  one 
or  more  good  and  perfect  common  recovery  or  recoveries,  with 
single,  double,  or  treble  vouchers,  may  be  had  and  suffered  of 
the  premises  aforesaid,  according  to  the  usual  course  of  common 
recoveries,  for  the  assurance  of  lands  and  tenements,  in  such 
case  used  and  accustomed  :  and  all  and  whatsoever  my  said  attor- 
ney and  attorneys,  jointly  and  severally,  shall  lawfully  do  or  act 
in  and  about  the  premises,  by  virtue  hereof,  I  do  hereby  ratify, 
confirm,  and  allow  the  same,  as  if  I  was  present  and  did  the  same 
in  my  own  person.  In  witness  whereof,  I,  the  said  Thomas  New- 
ark, have  hereunto  set  my  hand  and  seal,  this  twenty-fourth  day 
of  November,  anno  Domini  one  thousand  seven  hundred  and 
ninety-seven. 

THOMAS  NEWARK,  [L.  s.] 
Sealed  and  delivered  in  the 
presence  of  us, 

JOEL  RICHARDSON, 

JOHN  S.  LITTLER." 

Annexed  to  this  power  of  attorney,  were  the  following  acknowl- 
edgments : 

"  On  the  24th  day  of  November,  anno  Domini  1797,  before 
me,  the  subscriber,  one  of  the  Justices  of  the  peace  for  the  County 
of  Philadelphia,  came  the  before-named  Thomas  Newark,  who  is 
T*1471  now  of  *  lawful  age,  and  acknowledged  that  he  signed, 
-•  sealed,  and  delivered  the  foregoing  letter  of  attorney  as 
his  act  and  deed,  for  the  uses  and  purposes  therein  mentioned  and 
described,  and  desired  the  same  might  be  recorded  as  such.  Wit- 
ness my  hand  and  seal  the  day  and  year  aforesaid. 

JOSEPH  BIRD,  [L.  s.] 

On  the  26th  day  of  January,  anno  Domini  1798,  before  me, 
the  subscriber,  President  of  the  Court  of  Common  Pleas  for  the 
County  of  Philadelphia,  came  the  before-named  Thomas  Newark, 
who  is  now  of  lawful  age,  and  acknowledged  that  he  signed, 
sealed  and  delivered  the  foregoing  letter  of  attorney,  as  his  act 
and  deed,  for  the  uses  and  purposes  therein  mentioned  and  de- 
scribed, and  desired  the  same  might  be  recorded  as  such.  Wit- 
ness my  hand  and  seal,  the  day  and  year  aforementioned. 

JOHN  D.  COXE,  [L.  s.]" 


1885.]  OF  PENNSYLVANIA.  147 

(Sharp  75.  Thompson.) 
The  record  of  the  common  recovery  -was  as  follows  : 

"March  Term,  1798. — Common  Recovery — Samuel  Ghithrie, 
Demandant,  v.  Thomas  Newark,  Tenant — to  the  use  of  Sam- 
uel Gruthrie. 

Pleas  enrolled  at  Philadelphia,  before  the  Hon.  John  D.  Coxe, 
Esq.,  president,  and  his  associates,  judges  of  the  Court  of  Com- 
mon Pleas,  in,  and  for  the  County  of  Philadelphia,  in  the  Term  of 
March,  in  the  year  of  our  Lord  one  thousand  seven  hundred  and 
ninety-eight. 

Philadelphia  County,  ss. — Samuel  Guthrie  of  the  City  of  Phila- 
delphia, merchant,  in  his  proper  person,  demandeth  against 
Thomas  Newark,  of .  the  City  and  County  of  Philadelphia,  mari- 
ner, a  certain  messuage  or  tenement,  and  lot  or  piece  of  ground, 
now  in  the  tenure  of  said  Samuel,  and  Hannah,  his  wife,  situate 
on  the  south  side  of  Spruce  Street,  between  Delaware  Second 
and  Third  Streets,  in  the  said  city,  containing  in  breadth, 
eighteen  feet,  and  in  length  or  depth,  fifty-one  feet.  Bounded 
eastwardly,  by  ground  formerly  of  Nathaniel  Allen,  deceased  ; 
southwardly,  by  ground  formerly  of  Henry  Babcock,  deceased ; 
westwardly,  by  a  messuage  and  lot,  formerly  of  Joseph  Webb, 
and  since  of  George  Wells  ;  and  northwardly,  by  Spruce  Street 
aforesaid,  together  with  the  appurtenances,  subject  to  a  yearly 
rent  of  three  pounds  twelve  shillings,  lawful  money  of  Pennsyl- 
vania, to  Nathaniel  Allen,  his  heirs  and  assigns  for  ever,  which, 
by  the  testament  and  last  will  of  Thomas  Newark,  father  of  the 
said  Thomas  Newark,  bearing  date  the  twelfth  day  of  December, 
anno  Domini  one  thousand  seven  hundred  and  eighty-six, 
recorded  in  the  register's  office  at  Philadelphia,  was  devised  to 
his  son,  the  said  Thomas  Newark,  which  he  claims  (to  be  his  right 
and  inheritance,  and  into  which,  the  said  Thomas  hath  not  entry, 
*unless  after  a  disseisin,  which  Hugh  Hunt  thereof  rfc-Mci 
unjustly,  and  without  judgment,  hath  made  to  the  afore- 
said Samuel  Guthrie,  within  thirty  years,  now  last  past ;  and 
whereupon  he  saith,  that  he  himself  was  seized  of  the  tenements 
aforesaid,  with  the  appurtenances,  in  his  demesne,  as  of  fee  and 
right,  in  time  of  peace,  in  the  time  of  the  commonwealth  that 
now  is,  by  taking  the  profits  thereof  to  the  value,  &c.,  and  into 
which,  &c.,  and  thereupon  he  bringeth  suit,  &c. :  and  the  said 
Thomas  Newark,  by  his  attorneys,  Robert  Porter,  of  the  City  of 
Philadelphia,  Esquire,  and  Abraham  Shoemaker,  of  the  same 
place,  conveyancer,  duly  constituted  and  appointed  by  letters  of 
attorney,  bearing  date  the  twenty-fourth  day  of  November,  in  the 
year  of  our  Lord  one  thousand  seven  hundred  and  ninety-seven, 
comes  and  defends  his  right,  when,  &c.,  and  thereupon  voucheth 
to  warranty  Joseph  Fox,  who  is  present  here  in  court,  in  his 


148  SUPREME  COURT  [Dec.  Term, 

(Sharp  e.  Thompson.) 

proper  person,  and  the  tenements  aforesaid,  with  the  appurte- 
nances to  him  freely  warranteth,  &c.,  and  hereupon  the  said 
Samuel  demandeth  against  the  said  Joseph  Fox,  tenant,  by  his 
own  warranty,  the  tenements  aforesaid,  with  the  appurtenances 
in  form  aforesaid,  &c.,  and  whereupon  he  saith  that  he  himself 
was  seized  of  the  tenement  aforesaid,  with  the  appurtenances  in 
his  demesne,  as  of  fee  and  right  in  time  of  peace,  in  the  time  of 
the  commonwealth  that  now  is,  by  taking  the  profits  thereof,  to 
the  value,  &c.,  and  into  which,  £c.,  and  thereupon  he  bringeth 
suit,  &c.,  and  the  aforesaid  Joseph  Fox,  tenant  by  his  own  war- 
ranty, defends  his  right,  when,  £c.,  and  saith,  that  the  aforesaid 
Hugh  did  not  disseise  the  said  Samuel  Guthrie  of  the  tenements 
aforesaid,  with  the  appurtenances,  as  the  said  Samuel,  by  his  writ 
and  count  aforesaid,  above,  doth  suppose,  and  of  this  he  puts 
himself  upon  the  country,  and  the  aforesaid  Samuel  thereupon 
craveth  leave  to  imparle,  and  he  hath  it;  and  afterwards  the 
aforesaid  Samuel  cometh  again  here  into  court,  in  this  same  time, 
in  his  proper  person,  and  the  aforesaid  Joseph,  although  solemnly 
called,  cometh  not  again,  but  hath  departed  in  contempt  of  the 
court,  and  maketh  default :  Therefore,  it  is  considered  that  the 
aforesaid  Samuel  Guthrie,  do  recover  his  seisin  against  the  said 
Thomas  Newark,  of  the  tenements  aforesaid,  with  the  appurte- 
nances, and  that  the  said  Thomas,  have  of  the  lands  of  the  said 
Joseph,  to  the  value,  &c.,  and  the  said  Joseph  in  mercy  ;  and 
hereupon  the  said  Samuel  prays  a  writ  of  the  commonwealth,  to 
be  directed  to  the  sheriff  of  the  county  aforesaid,  to  cause  full 
seisin  of  the  tenements 'aforesaid,  with  the  appurtenances,  to  be 
delivered  to  him,  and  it  is  granted  to  him,  returnable  here  forth- 
with. And  afterwards,  in  this  same  term,  to  wit,  the 
day  of  March,  cometh  the  said  Samuel  in  his  proper  person,  and 
the  sheriff,  namely,  Jonathan  Penrose,  Esquire,  now  returneth, 
that  he,  by  virtue  of  the  writ  aforesaid,  to  him  directed,  on  the 
day  of  the  same  month,  did  cause  the  said 
r*14Ql  *Samuel  Newark  to  have  full  seisin  of  the  tenements 
aforesaid,  with  the  appurtenances  as  he  was  com- 
manded." 

"  Robert  Porter,  Esq.,  a  special  Power  of  Attorney,  filed  with  this 
common  Recovery,  vouches  to  Warranty  Joseph  Fox,  the  com- 
mon vouchee." 

Upon  the  facts  found  by  the  special  verdict,  the  District  Court 
ordered  judgment  to  be  entered  for  the  plaintiff  below  ;  where- 
upon the  defendant  removed  the  record  to  this  court ;  and  as- 
signed the  following  errors : 

"1.  That  the  court  below  erred  in  giving  judgment  for  the 
plaintiff  below,  because  Thomas  Newark,  Jr.,  did  not,  as  the  court 


1835.]  OF  PENNSYLVANIA.  149 

(Sharp  v.  Thompson.) 

below  supposed,  take  an  estate  tail,  under  the  will  of  his  father, 
but  took  a  fee  simple,  with  condition  of  defeasance. 

2.  That  the  court  below  erred  in  giving  judgment  for  the  plain- 
tiff below,  because,  if  Thomas  Newark  did,  as  they  supposed,  take 
an  estate  tail,  under  the  will  of  his  father,  that  estate  tail  was 
barred  by  the  common  recovery." 

Mr.  C.  Ingersoll,  for  the  plaintiff  in  error  : 

1.  Thomas  Newark,  the  devisee,  took  a  fee  simple  in  the  house 
and  lot,  liable  to  be  defeated  by  his  death  without  issue.     [Upon 
an  intimation  by  the   court,  that  they  considered   the  question 
settled  by  repeated  adjudications,  Mr.  Ingersoll  abandoned  this 
point.] 

2.  The  common  recovery  was  well  suffered.     The  whole  dif- 
ficulty has  arisen  from  the  mistake  of  the  scrivener,  who,  instead 
of  drawing  a  re-conveyance  from  Guthrie  to  Newark,  drew  a  sec- 
ond conveyance  from  Newark  to  Guthrie,  which  the  parties  exe- 
cuted in  ignorance.     This  is  a  mistake  of  the  kind  which  the  courts 
always  allow  to  be  corrected.     2  Black.  Com.  358  ;  5  Cruise. 
Dig.,  p.  440,  tit.  36.  c.  6,  s.  22  ;  Id.  437,  438.     It  is  not  neces- 
sary, however,  to  contend  for  an  amendment.     The  intention  of 
the  parties  is  obvious,  and  the  court  will  carry  it  into  effect  by 
disregarding  the  second  deed,  and  treating  it  as  a  nullity.     The 
first  deed  may  then  be  considered  as  merely  a  declaration  of  the 
uses  of  the  recovery,  and  not  as  divesting  the  estate  of  Newark. 
The  record  is  prima  facie  evidence  of  there  being  a  good  tenant 
to  the  prcecipe  ;  and  it  is  no  matter  whether  he  is  a  tenant  by 
right  or  wrong.     Wilson  on   Fines,  &c.,  275  ;  Pigott  on  Ditto, 
28,  40,  41.     There  was  nothing  to  the  contrary  but  the  deeds, 
and  no  possession  on  the  part  of  the  plaintiff.     Lord  Cromwell's 
case,  (2  Rep.  74  ;)  Pigott,  59,  60  ;  2  Black.  Com.  362,  363  ;  5 
Cruise.  Dig.  450.     In  England,  the  Stat.  of  Geo.  2,  renders  all 
recoveries  *good,  after  twenty  years  possession.    Here,     r*i50i 
there  has  been  possession  for  thirty-seven  years  ;  and 

the  court  will  presume  every  thing  in  favor  of  it.  It  will  be  re- 
marked, that  all  these  instruments  were  acknowledged  on  the  24th 
of  November,  before  the  same  magistrates,  and  with  the  same 
witnesses.  They  may  be  considered  as  the  same  transaction. 
The  case  of  Doe  ex.  dem.  Odiorne  v.  Whitehead,  (2  Burr.  Rep. 
704,)  shows  how  far  the  courts  will  go  in  supporting  these  species 
of  assurance.  If.  no  deed  to  make  a  tenant  to  the  prceripe  were 
produced,  the  court  would  presume  one,  or  presume  the  tenant  in, 
by  disseisin.  3  Rep.  59  ;  1  Mod.  Rep.  117  ;  Jacob's  Law  Diet. 
tit.  Recovery.  Equity  will  correct  mistakes  in  deeds  and  wills. 
1  Mad.  Chan.  44,  55. 


150  SUPREME  COURT  [Dec.  Term, 

(Sharp  9.  Thompson.) 

Mr.  Norris  and  Mr.  James  S.  Smith,  contra.  The  act  of  the 
27th  January,  1749-50,  "for  barring  estates  tail,"  declares  that 
fines  and  common  recoveries,  "  suffered  duly  and  according  to  the 
common  statute  laws  of  England,"  shall  have  the  like  force  and 
effect  as  in  England.  No  greater  power  or  effect  is  given  to  them. 
Now,  there  are  certain  forms  necessary  to  give  validity  to  a  com- 
mon recovery  ;  and  these  cannot  be  dispensed  with.  2  Black. 
Com.  360  ;  5  Cruise.  Dig.  tit.  36,  c.  1,  s.  9.  In  the  case  of  a 
recovery  with  a  single  voucher,  as  here,  the  tenant  in  tail  must 
be  tenant  to  the  prceripe,  and  must  be  in  possession  of  the  pre- 
mises. 5  Cruise.  Dig.  tit.  36,  c.  2,  s.  10  ;  Stump  v.  Findley,  (2 
Rawle,  175.)  Here  it  appears  that  when  the  recovery  was  suf- 
fered ;  that  is,  at  March  term,  1798,  the  title  was  in  Littler.  If 
Thomas  Newark,  Jr.,  conveyed  the  estate  by  feoffment,  it  was  a 
discontinuance.  3  Black.  Com.  171.  Our  act  of  1715  says, 
that  deeds  of  bargain  and  sale  shall  have  the  effect  of  a  feoffment. 
At  all  events,  Newark  conveyed  all  his  own  estate.  There  is  no 
evidence  of  any  intention  that  Guthrie  should  reconvey  to  New- 
ark, or  of  any  mistake.  There  is  nothing  on  the  record  to  amend. 
The  record  is  all  right  on  its  face  ;  but  we  show  the  recovery  to 
be  wrong,  by  proving  that  Newark  had  neither  title  nor  pos- 
session at  the  time.  In  Bridges  v.  The  Duke  of  Chandos,  (2 
Burr.  Rep.  1073,)  Lord  Mansfield  said,  that  if  a  person  had 
pmver  to  suffer  a  recovery,  and  thereby  bar  an  estate  tail,  omnia 
prcemmuntur  rite  et  solernniter  egse  acta  until  the  contrary  ap- 
pears ;  but  if  the  contrary  appears,  there  is  an  end  to  the  pre- 
sumption. And  he  mentioned  the  case  of  the  Earl  of  Suffolk, 
where  blundering  deeds  were  produced,  which  appeared  clearly  to 
be  wrong,  "  and  it  was  manifest  upon  the  evidence  disclosed,  that 
there  was  NO  good  tenant  to  the  prcecipe"  That  is  the  case  here. 
The  deed  to  lead  the  uses,  forms  no  part  of  the  record,  and,  con- 
sequently, could  not  be  amended,  even  if  there  were  anything  to 
amend,  by  which  there  is  not.  They  also  cited  Cruise  on  Recov- 
eries, &c.,  8,  12  ;  Coventry  on  Do.,  32,  51  ;  Pigott  on  Do.,  28  ; 
5  Cruise.  Dig.  tit.  36,  c.  7. 

*The  opinion  of  the  court  was  delivered  by 
SERGEANT,  J. — On  the  question,  what  estate  Thomas 
Newark  took,  under  the  will  of  his  father,  there  has  been  little  or 
no  argument  m  this  court ;  but  I  think  it  clear,  that  according  to 
the  current  of  decisions  in  this  court  and  in  England,  he  took  an 
estate  tail.  Most  of  the  authorities  applicable  to  this  point,  will 
be  found  collected  in  the  cases  of  ffaines  v.  Witmer,  (2  Yeates, 
400,)  and  Clark  v.  Baker,  (3  Serg.  &  R.  470.)*  The  more 

*See  9  Watts,  450 ;  9  Barr,  130 ;  11  Harris,  10 ;  6  Casey,  158,  161  ;  2 
Wright,  166. 


1835.]  OF  PENNSYLVANIA.  151 

(Sharp  v.  Thompson.) 

doubtful  point  has  been,  whether  the  common  recovery  was  duly 
suffered,  so  as  to  bar  the  issue  in  tail ;  and  the  court  below  held 
that  it  was  not. 

The  act  of  assembly  of  the  27th  of  January,  1749-50,  gave  to 
fines  and  common  recoveries  the  same  effect  for  the  barring  of 
estates  tail  within  this  province,  as  they  had  by  the  laws  of  Eng- 
land ;  and  many  recoveries  were  suffered  for  this  purpose,  prior 
to  the  passage  of  the  act  of  the  16th  of  January,  1799,  which 
enables  tenants  in  tail  to  convey  by  deed,  as  fully  as  they  could 
by  common  recovery  or  otherwise.  In  the  construction  of  com- 
mon recoveries,  suffered  after  the  act  of  1749-50,  the  same  rules 
are  applicable  which  governed  them  in  England  :  and  in  that 
country,  they  had  long  been  treated  as  common  assurances  ;  and 
it  has  become  a  settled  rule,  that,  like  other  conveyances,  such 
construction  is  to  be  made  as  will  best  support  the  agreement  of 
the  parties,  and  carry  into  effect  their  intentions.  The  main  con- 
sideration is,  whether  there  were  parties  competent  to  suffer  the 
recovery.  If  there  were,  every  interpretation  of  their  acts  is  to 
be  made  with  a  view  to  sustain  their  conveyance,  and  not  to  per- 
mit mistakes  or  blunders  in  the  use  of  the  machinery  employed, 
to  overturn  rights  acquired  and  transmitted  to  purchasers  for 
valuable  consideration.  Before  the  statute  de  donis,  a  grant  to 
one  and  the  heirs  of  his  body  was  so  interpreted  by  the  courts, 
as  to  enable  the  donee  to  transfer  a  fee  simple,  as  soon  as  issue 
was  born.  That  statute  forbade  this  construction,  and  created 
tenancy  in  tail,  with  the  design  of  preserving  the  estate  in  one 
family,  from  generation  to  generation.  Perpetuities  of  this  kind 
were  found  so  inconvenient,  and  so  hostile  to  the  improvement  of 
the  country,  that  the  device  of  a  common  recovery  was  allowed, 
in  order  to  unfetter  the  estate ;  and  the  tenant  in  tail  has  since 
been  treated  as  the  potential  owner  of  the  fee  simple,  having  an 
inherent  right  to  destroy  the  entail,  with  all  remainders  and 
reversions,  incapable  of  being  restrained  or  prevented  by  any 
clauses  of  limitation,  condition,  or  prohibition,  by  custom,  recog- 
nizance, or  otherwise ;  and  every  support  and  encouragement 
have  been  given  to  common  recoveries,  as  legitimate  modes  of 
conveyance  of  the  fee  simple.  As  early  as  Lord  Coke's  time,  the 
language  of  the  courts  is  quite  as  strong  as  any  that  has  been 
since  uttered.  In  Jennings'  case,  (10  Co.  44,)  it  is  said,  that 
where  tenant  in  tail  is,  in  the  recovery,  tenant  in  fact,  or  tenant 
in  law,  as  vouchee,  *the  law,  as  incident  to  his  estate,  p*]^"] 
has  made  the  land  and  all  remainders  and  reversions 
subject  to  his  pleasure,  and  he  has  right  and  power  to  bar  them 
all.  In  3  Rep.  3,  (  Winchester's  case,)  it  is  said,  that  common 
recoveries,  as  much  as  any  benign  interpretation  of  the  law  will 
permit,  ought  to  be  maintained,  because  they  are  the  common 


152  SUPREME  COURT  \I)ec.  Term, 

(Sharp  v.  Thompson.) 

assurances  of  the  land.  In  Lord  CromwelVs  case,  (2  Rep.  74,) 
it  is  said,  that  common  recoveries  are  common  assurances  of  the 
land  ;  and  such  conveyances  shall  be  expounded  and  be  construed 
according  to  common  allowance,  without  prying  into  them  with 
eagle's  eyes.  After  an  interval  of  two  centuries,  Blackstone 
says,  that  modern  courts  of  justice  consider  them  in  no  other 
light  than  as  the  formal  modes  of  conveyance,  by  which  tenant  in 
tail  is  enabled  to  alien  Ms  lands.  2  Black.  Com.  360.  This 
language  has  been  often  reiterated.  2  Black.  Com.  358 ;  1  Wils. 
73  ;  1  Burr.  115.  I  speak  not  now  of  a  recovery  suffered  by  a 
tenant  for  life,  which  is  forbidden  by  the  law,  and  is  always  strictly 
construed.  It  is  far  otherwise  of  a  tenant  in  tail,  conveying  a 
fee  simple  by  it ;  for  he  does  no  more  than  what  he  may  right- 
fully do,  and  what  public  policy  has  encouraged  him  to  do.  Let 
us  examine,  then,  whether  the  recovery  in  the  present  instance 
cannot  be  sustained  ;  for  if  it  can  be  so,  by  any  reasonable  inter- 
pretation of  the  acts  of  the  parties,  it  certainly  ought  to  be  in  fa- 
vor of  persons  holding  under  it  as  purchasers  for  valuable  con- 
sideration, by  titles  transmitted  from  hand  to  hand,  accompanied 
with  possession  for  now  about  thirty -seven  years. 

Thomas  Newark  was  tenant  in  tail  of  the  premises  under  the 
will  of  his  father,  and,  as  such,  entitled  to  transfer  a  fee  simple 
by  suffering  a  common  recovery.  He  was  about  to  leave  this 
city  on  a  voyage  to  Amsterdam,  as  appears  by  the  power  of 
attorney  ;  and  had  sold,  or  contracted  to  sell  the  premises  to 
Guthrie  and  wife,  or,  if  they  acted  as  his  friends,  to  Littler : 
for,  on  the  19th  of  December,  1797,  soon  after  the  deeds  of  the 
24th  November  and  the  teste  of  the  writ  of  entry,  Littler  took  a 
deed  from  Guthrie  and  wife,  in  fee  simple,  in  consideration  of 
$2218  79  ;  the  same  consideration  stated  in  the  deed  from  New- 
ark to  Guthrie  and  .wife.  Littler  held  until  1803,  when  he  con- 
veyed to  Robert  Smith,  under  whom  the  defendant  holds.  It  is 
impossible  not  to  perceive,  from  the  whole  transaction,  that  Lit- 
tler stood  in  the  light  of  a  bona  fde  purchaser  of  the  fee  simple, 
for  a  valuable  consideration,  entitled,  as  such,  to  demand  from 
Newark  the  suffering  of  a  common  recovery  to  transfer  the  title  ; 
and  that  the  uses  of  the  recovery  were  to  be  in  Guthrie  and  wife, 
(or  Guthrie  himself,  which  leads  to  the  same  result,)  for  the  pur- 
pose of  conveying  the  fee  to  Littler ;  and  that  Littler  bought  on 
the  faith  of  this  arrangement,  then  actually  made  and  in  progress 
of  completion. 

The  first  deed  is  dated  on  the  23d  of  November,  1797,  but  was 

acknowledged  on  the  24th :  and  by  it  Newark,  in  consideration 

["'M'ttl     °^  *2218  79,  bargains  and  sells  the  premises  to  Samuel 

-I     Guthrie,  and  Hannah  his  wife,  their  heirs  and  assigns,  to 

the  use  of  Samuel  Guthrie,  and  Hannah  his  wife,  their  heirs  and 


1835.]  OF  PENNSYLVANIA.  153 

(Sharp  v.  Thompson. ) 

assigns;  with  a  covenant  for  further  assurance.  If  this  deed  be 
considered  by  itself,  as  an  instrument  altogether  distinct  from 
the  other  acts  and  declarations'  of  the  parties,  then  it  conveyed 
no  more  than  Newark  could  rightfully  convey  by  deed,  namely, 
a  base  fee,  which  bound  him  during  his  life  time ;  but  which  his 
issue  might  defeat  by  entry.  This  point  was  settled  by  Chief 
Justice  Holt,  in  the  case  of  Machel  v.  Clark,  2  Ld.  Ray.  778 ;  3 
Burr.  1703;  Prest.  Abs.  Tit.  385.  A  conveyance  under  our 
recording  act,  has  the  same  eifect:  it  passes  no  more  than  the 
grantor  can  lawfully  convey.  M'Kee's  Lessee  v.  Pfoutz^  Dall. 
486.  A  common  recovery,  afterwards  duly  suffered  by  Newark, 
with  double  voucher,  would  have  corroborated  the  base  fee  trans- 
ferred by  the  bargain  and  sale  to  Guthrie  and  wife,  and  passed 
a  fee  simple,  to  the  same  uses  as  those  contained  in  the  deed  to 
them.  But  a  common  recovery,  with  single  voucher,  suffered  by 
Newark,  in  which  he  was  tenant  to  the  prcecipe,  as  he  had  parted 
with  the  freehold  by  his  deed  to  Guthrie  and  wife,  would  bar  him- 
self only,  and  not  his  issues. 

This,  however,  is  not  the  true  way  of  considering  the  transac- 
tion. It  is  obvious,  from  the  dates  of  the  deeds  and  power  of 
attorney,  and  from  the  proceedings  in  the  recovery,  that  they 
constituted,  together,  one  assurance ;  of  which  the  deed  to  Guth- 
rie and  wife,  was  a  deed  to  lead  the  uses,  and  was  but  part  of  the 
proceedings,  and  executory  until  the  recovery  was  suffered.  When 
suffered,  it  enured  to  the  uses  declared  in  that  deed ;  more  especi- 
ally, as  there  is  an  immediate  purchaser  under  it.  Where  no 
uses  are  declared  of  &  recovery,  either  by  a  previous  deed  to  lead 
the  uses,  or  a  subsequent  one  to  declare  them,  it  enures  to  the 
use  and  benefit  of  him  who  suffers  it.  If  there  be  a  purchaser, 
for  a  valuable  consideration,  the  recovery,  when  suffered,  enures 
to  his  use.  Here  were  both  a  deed  to  lead. the  uses  to  Guthrie 
and  wife,  and  an  immediate  purchaser,  for  valuable  consideration, 
from  them.  The  deed  of  the  23d  November,  1797,  being  but 
executory,  its  only  operation,  till  the  recovery  should  be  com- 
pleted, Avas  to  fix  the  uses  of  the  recovery  ;  and  when  the  recovery 
Mas  completed,  the  freehold  and  seisin  passed  to  the  demandant, 
Guthrie,  to  those  uses,  and  those  uses  only.  A  deed  to  lead  the 
uses  of  a  fine  or  recovery,  says  Mr.  Preston,  in  his  Treatise  on 
Conveyancing,  vol.  ii,  page  2,  3,  is  not  a  conveyance  of  itself.  It 
has  no  individual  or  immediate  operation  on  the  seisin  or  estate. 
It  is  merely  a  covenant  or  agreement  to  levy  a  fine,  or  suffer  a 
common  recovery.  This  deed,  and  the  fine  when  levied,  or  re- 
covery when  suffered,  will  operate  as  a  part  of  the  same  assur- 
ance. No  estate  passes  till  the  fine  is  levied,  or  recovery  suffered; 
and  in  the  mean  time,  no  uses  can  arise,  for  want  of  a  seisin  to 
supply  or  feed  those  uses.  In  the  case  of  Doe  dem.  Odiorne 


154  SUPREME  COURT  [Dec.  Term, 

(Sharp  e.  Thompson.) 

*v*  J^***^*8^  (2  Burr.  70,)  the  first  instrument  was  a 
conveyance  in  January,  1735,  from  Timothy  Staughton, 
the  tenant  in  tail,  by  lease  and  release,  to  trustees,  to  uses,  in 
strict  settlement,  with  a  covenant  to  levy  a  fine  to  the  same  uses. 
Afterwards,  in  Hilary  term,  1735,  Timothy  Staughton  did  levy 
a  fine  according  to  the  covenant.  The  argument  of  the  plaintiff 
was,  that  the  fine  passed  no  freehold,  the  freehold  having  heen, 
before  levying  of  the  fine,  conveyed  by  lease  and  release,  and  that 
the  fine  was  a  distinct  conveyance.  But  Lord  Mansfield  says,  all 
was  executory  at  the  time  of  making  the  lease  and  release ;  the 
deeds  and  the  fine  were  to  be  considered  as  one  conveyance :  the 
operation  of  the  deeds  was  only  to  declare  the  uses  of  the  fine : 
and  the  court  condemn,  in  strong  language,  the  attempt  to  divide 
the  different  parts  of  one  conveyance,  and  declare  that,  in  point 
of  law,  the  whole  transaction,  and  its  general  intention,  ought  to 
be  taken  into  one  view.  So  here,  Newark  had  a  right  to  suffer  a 
common  recovery,  and  sell  the  fee  simple :  it  was  his  plain  and 
obvious  intent  to  do  so,  on  the  face  of  the  whole  transaction.  The 
deed  to  Guthrie  and  wife  is  not  to  be  severed  from  the  rest,  and 
treated  as  a  distinct  conveyance,  but  as  a  deed  to  lead  the  uses  of 
a  common  recovery,  to  be  suffered  for  the  purposes  of  passing  the 
fee  simple  to  a  purchaser.  And  this  abundantly  appears,  although 
there  is  in  the  deed  no  covenant  to  suffer  a  recovery,  or  any  men- 
tion of  it.  Under  the  covenant  for  further  assurance,  a  pur- 
chaser has  a  right  to  demand  that  a  recovery  be  suffered  by  the 
tenant  in  tail  in  his  favor,  as  fully  as  if  that  covenant  were  par- 
ticularly expressed.  1  Prest.  Convey.  15 ;  1  Prest.  Abs.  Tit. 
257.  And  from  that  covenant,  from  there  being  a  purchaser, 
and  from  the  cotemporaneous  dates  and  proceedings,  it  is  plain 
that  the  recovery  was  to  be  suffered  to  the  uses  expressed  in  the 
deed. 

The  next  step  taken,  was  an  attempt  to  make  a  tenant  to  the 
prcecipe.  For  this  purpose,  Newark  executes  a  deed  to  Guthrie, 
in  fee  simple ;  which,  after  reciting  Newark's  title,  states  that 
Newark,  for  barring  all  estates  tail,  and  remainders  in  tail,  in  the 
premises,  and  for  settling  and  assuring  the  same ;  in  considera- 
tion of  five  shillings,  bargains  and  sells  to  Guthrie,  his  heirs  and 
assigns,  to  the  intent  and  purpose  that  Guthrie  shall  and  may  be- 
come perfect  tenant  of  the  freehold,  and  stand  and  be  seized 
thereof,  until  a  common  recovery,  with  single  voucher,  may  be 
suffered  of  the  same.  So  far  the  deed  is  intelligible ;  and  if  it 
had  gone  on  to  provide  for  a  recovery  in  which  Guthrie  should  be 
tenant,  and  some  other  person  demandant,  it  would  have  had 
some  consistency :  although  such  recovery  against  Guthrie,  with 
single  voucher,  would  not  have  barred  the  issue  in  tail.  The  true 
way  would  have  been  with  double  voucher:  namely,  Guthrie  to 


1835.]  OF  PENNSYLVANIA.  154 

(Lee  v.  Conard.) 

vouch  Newark,  and  Newark  the  common  vouchee.  Instead  of 
this,  it  goes  on  to  provide  that  Guthrie  should  be  the  demandant, 
and  Newark  the  tenant ;  the  recovery  *  to  enure  to  the  r*i  c  c-i 
use  of  Guthrie  in  fee.  When  the  granting  part  of  the  ^ 
deed,  and  its  declared  and  sole  object  and  intent,  are  directly  at 
variance  with  the  mode  pointed  out  of  carrying  that  object  into 
effect,  it  is  impossible  to  give  it  any  effect,  unless  we  can  recon- 
cile contradictions.  And  this  is  more  especially  true,  in  regard 
to  a  deed  to  make  a  tenant  to  the  prcecipe,  who  is  always  con- 
sidered a  mere  instrument  to  effectuate  the  intention  of  the  par- 
ties. 1  Burr.  117.  This  deed,  therefore,  was  an  abortive  effort, 
and  in  its  effect  and  operation,  a  mere  nullity.  No  recovery, 
according  to  its  declared  intent,  was  ever  attempted  to  be  suffered 
against  Guthrie,  as  tenant ;  on  the  contrary,  he  by  his  writ  of 
entry  and  proceedings,  subsequently  admitted  the  freehold  and 
seisin  to  be  in  Newark,  and  recovered  them  against  Newark  ;  and 
was  thereby  for  ever  estopped,  as  party  to  that  recovery,  to  set 
up  any  adverse  title  by  virtue  of  this  deed,  against  those  who 
purchased  from  him. 

That  being  the  case,  the  recovery  is  duly  suffered,  so  as  to  bar 
the  issue  in  tail,  by  Newark,  as  tenant  to  the  writ  of  entry,  with 
single  voucher,  he  being  seized  .of  an  estate  in  tail  in  possession. 
2  Black.  Com.  356 ;  1  Prest.  Convey.  31.  And  it  operates  ac- 
cording to  the  uses  expressed  in  the  deed  to  Guthrie  and  wife, 
who,  by  their  deed  of  the  19th  of  December,  1797,  lawfully  sold 
and  conveyed  the  fee  simple  in  the  premises  to  Littler,  under 
whom  the  defendant  holds. 

Judgment  reversed. 

Cited  by  Counsel,  4  Watts  &  Sergeant,  194 ;  7  Id.  98 ;  10  Barr,  499 ;  4 
Harris,  379 ;  11  Id.  239 ;  12  Id.  170,  245 ;  2  Casey,  128 ;  6  Id.  167,  172 ; 
13  Wright,  343  ;  1  Grant,  62. 

Cited  by  the  Court,  6  Watts,  21 ;  4  P.  F.  Smith,  151. 


[PHILADELPHIA,   JANUARY  25,  1836.] 

LEE  against  CONARD, 


IN    ERROR. 


Where  the  declaration,  in  an  action  on  the  case,  alleged  that  the  defendant 
wrongfully  and  unjustly  sued  out  an  execution  upon  a  judgment  which 
he  had  entered  against  the  plaintiff,  and  by  virtue  thereof,  wrongfully 
and  unjustly  caused  the  land  of  the  plaintiff  to  be  seized  and  sold,  &c.  ; 
knowing  the  judgment  to  be  paid  and  satisfied  ;  it  was  held  that  evi- 
dence was  not  admissible  to  prove  that  the  debt,  for  which  the  judgment 
had  been  entered,  was  paid  before  the  entry  thereof. 


155  SUPREME  COURT  [Dec.  Term, 

(Lee  t>.  Conard.) 

UPON  a  writ  of  error  to  the  District  Court  for  the  city  and 
county  of  Philadelphia,  the  case  was  thus : 

To  June  Term,  1838,  of  that  court,  Cornelius  Conard  brought 
f*15Cl     *an  ac^on  on  *ne  case  against  William  Lee,  in  which 
J     the  following  declaration  was  filed. 

"  Philadelphia  county,  88. 

"  William  Lee,  late  of  Philadelphia  county,  yeoman,  was  sum- 
moned to  answer  Cornelius  Conard  of  a  plea  of  trespass  on  the 
case,  &c. 

And,  whereupon  the  said  Cornelius  Conard  by  Jesse  Conard 
his  attorney  complains,  that  whereas,  before  the  committing  of 
the  grievances  by  the  said  William  Lee,  hereinafter  mentioned ; 
the  said  William  Lee  did,  on  the  30th  day  of  July,  1831,  cause 
and  procure  a  certain  judgment  to  be  entered  upon  the  record  of 
the  court  of  Common  Pleas  of  the  county  of  Chester,  against  the 
said  Cornelius  Conard,  and  in  favor  of  the  said  William  Lee,  for 
the  sum  of  one  thousand  and  ninety  dollars,  money  of  the  United 
States  of  America,  debt,  besides  costs,  &c.  And,  whereas,  before 
and  at  the  time  of  the  committing  of  the  grievances  by  the  said 
William  Lee,  as  hereinafter  mentioned,  the  mid  judgment  had 
been  fully  paid  and  satisfied:  yet  the  said  William  Lee,  well 
knowing  the  premises,  but  contriving  and  wrongfully  and  unjustly 
intending  to  injure  and  aggrieve  the  said  Cornelius  Conard  in  that 
behalf,  heretofore,  to  wit,  on  the  30th  of  July,  1831,  caused  and 
procured  a  certain  writ  of  fieri  facias  to  be  issued  out  of  the  court 
of  Common  Pleas  of  the  county  of  Chester,  founded  upon  and 
under  color  and  pretence  of  the  said  judgment,  and  whereby  the 
sheriff  of  the  county  of  Chester  aforesaid,  was  directed  to  levy  on 
the  goods  and  chattels,  lands  and  tenements  of  the  said  Cornelius 
Conard,  in  the  bailiwick  of  the  said  sheriff,  as  well  a  certain  debt 
of  one  thousand  and  ninety  dollars,  as  also  seventy-two  shillings 
damages,  and  that  the  said  sheriff  should  have  those  moneys  be- 
fore the  judges  at  West  Chester,  at  the  county  court  of  Common 
Pleas,  there  to  be  held  the  first  Monday  in  August  next  ensuing ; 
and  then  and  there  wrongfully  and  injuriously  caused  and 
procured  the  said  writ  of  fieri  facias  to  be  endorsed  to  the 
said  sheriff,  to  levy  six  hundred  and  nineteen  dollars  and  two 
cents,  as  due  upon  the  said  judgement,  besides  sheriffs  poundage, 
officers'  fees,  and  other  incidental,  expenses  ;  and  afterwards,  to 
wit,  on  the  30th  of  July,  1831,  wrongfully  and  unjustly  caused 
and  procured  the  said  writ  of  fieri  facias,  so  endorsed,  to  be  de- 
livered to  Oliver  Alison,  Esq.,  then  sheriff  of  the  said  county  of 
Chester ;  and  then  and  there  caused  and  procured  certain  lands 
and  tenements  of  him  the  said  Cornelius  Conard,  in  the  bailiwick 
of  the  said  sheriff  to  be  seized,  taken  in  execution,  condemned 


1835.]  OF  PENNSYLVANIA.  156 

(Lee  v.  Conard.) 

and  subjected  to  sale  under  color  and  pretence  of  the  said  writ 
for  the  said  sum  of  six  hundred  and  nineteen  dollars  and  two 
cents,  besides  sheriff's  poundage,  officers'  fees,  and  other  inci- 
dental expenses. 

And  the  said  Cornelius  Conard,  by  his  attorney  further  com- 
plains. That  whereas,  before  the  committing  of  the  grievances  by 
the  said  *William  Lee,  hereinafter  mentioned,  the  said  p,^  ^-. 
William  Lee  did  on  the  30th  day  of  July,  1831,  cause  L 
and  procure  a  certain  other  judgment  to  be  entered  upon  the 
record  of  the  court  of  Common  Pleas  of  the  county  of  Chester, 
against  the  said  Cornelius  Conard,  and  in  favor  of  the  said 
William  Lee,  for  the  «um  of  one  thousand  and  sixty  dollars, 
money  of  the  United  States  of  America,  debt,  besides  costs,  &c. 
And,  whereas,  before  and  at  the  time  of  the  committing  of  the 
grievances  by  the  said  William  Lee,  hereinafter  mentioned,  the 
said  last  mentioned  judgment  had  also  been  fully  paid  and  sat- 
isfied: yet  the  said  William  Lee  well  knowing  the  premises,  but 
contriving  and  wrongfully  and  unjustly  intending  to  injure  and 
aggrieve  the  said  Cornelius  Conard  in  that  behalf,  heretofore,  to 
wit,  on  the  30th  of  July,  1831,  wrongfully  and  unjustly  caused 
and  procured  a  certain  writ  of  fieri  facias  to  be  issued  out  of  the 
court  of  Common  Pleas  of  the  county  of  Chester,  founded  upon 
and  under  pretence  of  the  said  judgment,  and  whereby  the 
sheriff  of  the  county  of  Chester  aforesaid  was  directed  to  levy 
the  goods  and  chattels,  lands  and  tenements  of  the  said  Corne- 
lius Conard,  in  the-  bailiwick  of  the  said  sheriff,  a  certain  sum  of 
one  thousand  and  sixty  dollars  debt,  and  seventy-two  shillings 
damages,  and  that  the  said  sheriff  should  have  those  moneys 
before  the  judges  at  West  Chester,  at  the  county  court  of  Com- 
mon Pleas,  there  to  be  held  the  first  Monday  in  August  next 
ensuing ;  and  then  and  there  wrongfully  and  injuriously  caused 
and  procured  the  said  writ  of  fieri  facias  to  be  endorsed  to  the 
said  sheriff,  to  levy  six  hundred  and  one  dollars  and  ninety-nine 
cents,  as  due  upon  the  said  judgment,  besides  sheriff's  poundage, 
officers'  fees,  and  other  incidental  expenses :  And  afterwards,  to 
wit,  on  the  30th  day  of  July,  1831,  wrongfully  and  unjustly 
caused  and  procured  the  said  writ  of  fieri  facias  so  endorsed  as 
aforesaid,  to  be  delivered  to  Oliver  Alison,  Esq.,  then  sheriff  of 
the  said  county  of  Chester,  and  then  and  there  caused  and  pro- 
cured certain  lands  and  tenements  of  him,  the  said  Cornelius 
Conard,  in  the  bailiwick  of  the  said  sheriff,  to  be  seized,  taken 
in  execution,  condemned  and  subjected  to  sale  under  color  and 
pretence  of  the  said  writ  for  the  said  sum  of  six  hundred  and 
one  dollars  and  ninety-nine  cents,  besides  sheriff's  poundage, 
officers'  fees,  and  other  incidental  expenses.  Again,  the  said 
William  Lee  well  knowing  the  premises,  but  contriving  and 

VOL.  i. — 11 


157  SUPREME  COURT  [Dec.  Term, 

(Lee  v.  Conard.) 

fraudulently  and  unjustly  intending  to  injure  and  aggrieve  the 
said  Cornelius  Conard  in  that  behalf,  heretofore,  to  wit,  on  the 
21st  of  November,  1831,  wrongfully  and  unjustly  caused  and 
procured  a  certain  writ  of  venditioni  exponas  to  be  issued  out 
of  the  said  court  of  Common  Pleas  of  Chester  county,  whereby 
the  sheriff  of  the  said  county  was  directed  that  the  lands  and 
tenements  in  form  as  aforesaid,  seized  and  taken  in  execution 
by  virtue  of  the  fieri  facias,  aforesaid,  without  delay,  he  should 
expose  to  sale,  and  the  money  mentioned  in  the  fieri  facias  afore- 
said, should  have  before  the  judges  at  West  Chester,  at  their 
T*1  ^81  county  court  of  Common  *  Pleas,  on  the  last  Monday 
of  January  then  next  ensuing*,  and  then  and  there 
wrongfully  and  injuriously  caused  and  procured  the  said  writ  of 
venditioni  exponas  to  be  endorsed  to  the  said  sheriff  to  levy  five 
hundred  and  fifty-five  dollars  and  sixty-two  cents,  as  due  upon 
the  said  writ,  besides  costs,  &c.,  and  afterwards,  to  wit,  on  the 
21st  November,  1831,  wrongfully  and  unjustly  caused  and  pro- 
cured the  said  writ,  so  endorsed  as  aforesaid,  to  be  delivered  to 
Peter  Osborne,  Esq.,  then  sheriff  of  the  said  county  of  Chester, 
and  then  and  there  caused  and  procured  the  lands  and  tenements 
of  him  the  said  Cornelius  Conard,  in  the  bailiwick  of  the  said 
sheriff,  so  as  aforesaid  seized  and  taken  in  execution,  condemned 
and  subjected  to  sale  by  virtue  of  the  fieri  facias  aforesaid,  to  be 
sold  to  Thomas  Davis,  of  the  county  of  Chester,  for  the  sum  of 
one  thousand  seven  hundred  and  sixty-six  dollars,  and  for  a  much 
less  sum  of  money,  to  wit,  the  sum  of  one  thousand  five  hundred 
dollars,  less  than  the  same  tenements  were  really  worth,  whereby 
the  said  Cornelius  Conard  lost  his  lands  and  tenements  aforesaid ; 
and  the  said  Cornelius  Conard,  in  order  to  obtain  the  money 
arising  from  the  sale  of  the  said  lands  and  tenements  upon  the 
said  venditioni  exponas,  was  forced  and  obliged  to  pay  and  did 
pay  a  large  sum  of  money,  to  wit,  the  sum  of  one  thousand  dollars, 
&c.  Wherefore  the  said  Cornelius  Conard  saith  that  he  is  worse 
and  hath  damage  to  the  amount  of  three  thousand  dollars,  and 
therefore  he  brings  his  suit,  &c. 

JESSE  CONARD,  Attorney" 

To  this  declaration  the  defendant  pleaded  "  not  guilty,  with 
leave  to  give  the  special  matter  in  evidence,"  &c.;  and  issue  being 
joined,  the  cause  came  on  for  trial  on  the  18th  of  December, 
1834.  The  plaintiff's  counsel  in  his  opening,  stated  that  the 
plaintiff  formerly  resided  in  Chester  county,  in  the  state  of  Penn- 
sylvania ;  that  in  the  month  of  March,  1829,  he  purchased  from 
the  defendant  a  farm  in  Cape  May  county,  New  Jersey,  for  the 
price  of  two  thousand  five  hundred  dollars,  of  which  he  paid  five 
hundred  dollars  in  cash  and  gave  his  bonds  for  the  remaining  two 


1835.]  OF  PENNSYLVANIA.  158 

(Lee  v.  Conard.) 

thousand  ;  one  bond  payable  in  six  months,* one  in  twelve  months, 
one  in  eighteen  months,  and  one  in  twenty-four  months  ;  each  for 
five  hundred  dollars  ;  payable  with  interest,  and  dated  the  25th 
day  of  March,  1829  ;  that  the  plaintiff  also  gave  the  defendant 
four  notes  drawn  by  himself  and  endorsed  by  John  Conard,  cor- 
responding with  the  said  bonds,  and  that  the  defendant  gave  the 
plaintiff  a  written  agreement,  stating  the  whole  transaction,  and 
stipulating  that  as  the  notes  were  severally  paid,  the  correspond- 
ing bond  should  be  cancelled  and  given  up  :  that  the  first  three 
notes  were  paid  and  taken  up  when  due  :  that  the  third  note  was 
paid  and  taken  up  by  the  plaintiff's  agent,  John  Conard,  but  was 
afterwards  given  by  Richard  Pryor  to  the  defendant,  to  be  held 
by  him  as  collateral  security  for  the  payment  of  another  note 
drawn  by  the  defendant  for  the  accommodation  of  *  John  ^^  eq1 
Conard,  but  with  which  the  plaintiff  had  nothing  to  do  ;  L  • 
the  object  being  to  obtain  the '  defendant's  consent  to  the  re- 
newal of  John  Conard's  note  :  that  under  the  judgments  entered 
by  the  defendant  upon  the  bonds,  the  sheriff  had  sold  the  plain- 
tiff's land  for  at  least  one  thousand  dollars  under  value  :  that 
rules  were  obtained  by  the  plaintiff,  (Conard,)  to  open  these 
judgments  which  were  made  absolute,  whereupon  declarations 
were  filed,  pleas  entered,  and  the  cases  put  on  the  trial  list, 
and  that  when  they  were  reached  for  trial,  the  defendant  (Lee) 
suffered  a  nonsuit. 

The  plaintiff's  counsel  having  offered  evidence  accordingly,  the 
defendant's  counsel  objected  to  its  admission  on  the  ground  that 
it  did  riot  support  either  count  in  the  declaration  ;  but  the  court 
permitted  the  evidence  to  be  given  ;'  and  the  defendant's  counsel 
tendered  a  bill  of  exceptions. 

The  plaintiff  having  given  in  evidence  the  original  agreement 
of  the  parties,  and  the  promissory  notes  drawn  by  the  plaintiff 
and  endorsed  by  John  Conard,  examined  Richard  Pryor ;  'who 
testified  in  substance,  that,  on  the  17th  of  May,  1831,  he  gave  to 
the  defendant  Lee,  the  plaintiff's  note  for  530  dollars,  telling  him 
at  the  time  that  it  was  one  of  the  notes  for  the  Jersey  farm,  which 
had  been  paid,  and  that  he  (the  witness,)  gave  it  to  him  as  a  col- 
lateral security,  for  the  purpose  of  getting  him  to  sign  the  note 
for  275  dollars  for  John  Conard.  That  he  received  the  note  for 
530  dollars  from  John  Conard,  and  had  no  authority  from  Conard 
to  deliver  it  to  the  defendant.  That  in  February,  1832,  he  ten- 
dered the  amount  of  John  Conard's  note  to  the  defendant,  and 
demanded  of  him  the  plaintiff's  note  for  530  dollars,  which  he  re- 
fused to  give  up.  The  witness  stated  other  circumstances  in  sup- 
port of  the  allegations  of  fraudulent  intent  or  malicious  motives. 
Witnesses  were  also  examined  to  prove  the  value  of  the  land 
which  had  been  sold  under  the  executions.  The  plaintiff  then 


159  SUPREME  COURT  [Dec.  Term, 

(Lee  v.  Conard.) 

gave  in  evidence  the  records  of  the  Court  of  Common  Pleas  of 
hester  county,  showing  the  entry  of  the  two  judgments  in  favor 
of  William  Lee  against  Cornelius  Conard,  by  virtue  of  two  several 
warrants  of  attorney.  Each  judgment  was  entered  on  the  30th 
of  July,  1831  ;  one  being  for  1090  dollars;  the  penalty  of  a  bond 
for  545  dollars  ;.  the  other  being  for  1060  dollars,  the  penalty  of 
a  bond  for  530  dollars ;  each  bond  being  dated  the  25th  of  March, 
1829.  The  proceedings  on  these  judgments  were  as  follows:  . 

1.  On  the  judgment  for  1090  dollars  a  fieri  facias  issued  on  the 
30th  July,  1821,  to  August  Term,  1831,  No.  37,  endorsed  to 
levy  $619  02,  with  interest  from  the  30th  July,  1831,  and  costs. 
Upon  this  fi.  fa.  an  inquisition  was  held,  and  the  land  condemned. 
A  venditioni  exponas  issued  to  October  Term,  1831,  No.  32,  en- 
dorsed in  like  manner.     On  the  8th  of  November,  1831,  on  mo- 
tion of  Mr.  Bell,  the  court  granted  a  rule  to  show  cause  why  the 
f*1 601     judgment  in  this  *case  should  not  be  opened  and  the  de- 

-I  fendant  permitted  to  take  defence ;  proceeding  upon  the 
execution  to  stay  in  the  mean  time.  On  the  13th  of  December, 
1831,  the  rule  was  by  consent  made  absolute.  A  declaration  was 
then  filed  to  which  the  defendant  on  the  same  day  pleaded  pay- 
ment with  leave,  &c. :  and  on  the  9th  of  May,  1833,  on  motion  of 
the  defendant's  counsel,  a  nonsuit  was  ordered,  according  to  the 
act  of  Assembly. 

2.  On  the  judgment  for  1060  dollars,  a  fieri  facias  issued  on  the 
30th  of  July,  1821,  to  August  Term,  1831,  No.  38,  endorsed  to 
levy  $601  99,  with  interest  from  the  30th  of  July,  1831,  and 
costs.     To  this  writ  the  sheriff  returned  "lands  levied  on  and  con- 
demned."    On  the  21st  of  November,  1831,  a  venditioni  exponas 
issued  to  January  Term,  1832,  No.  21,  endorsed  to  levy  $555  22, 
with  interest  and  costs  as  before.     It  appeared  by  the  docket  en-  • 
tries,  that  on  the  13th  of  December,  1831,  on  motion  of  Mr.  Bell, 
and  affidavits  filed,  the  court  granted  a  rule  to  show  cause  why 
this  venditioni  exponas  should  not  be  set  aside  ;  proceedings  to 
stay  in  the  mean  time  ;  which  rule  was  returnable  on  the  16th  of 
January  following.     On  the  27th  of  December,  however,  the 
sheriff  sold  the  land  of  Conard,  under  this  writ,  for  the  sum  of 
1760  dollars,  (subject  to  a  mortgage  of  1317  dollars,  with  interest, 
in  favor  of  Rebecca  Williams,  to  be  paid  at  the  death  of  Mary 
Williams.)     On  the  3d  of  February,  1832,  exceptions  were  made 
to  the  sheriff's  sale  ;  and  on  motion  of  Mr.  Bell,  a  rule  was  granted 
to  show  cause  why  the  sheriff's  sale  should  not  be  set  aside  ; 
which  rule,  on  the  llth  of  April,  1832,  was  discharged;  and  on 
the  15th  of  April,  a  rule  was  granted  upon  the  sheriff  to  bring 
into  court  the  balance  remaining  in  his  hands,  after  discharging 
the  execution,  No.  39,  to  August  Term,  1831.     Various  proceed- 
ings then  took  place  respecting  the  distribution  of  the  proceeds 


1835.]  OF  PENNSYLVANIA.  160 

(Lee  v.  Conard.) 

of  sale,  which  it  is  not  material  here  to  state.  It  appeared,  also, 
by  the  record,  that  on  the  18th  of  January,  1832,  on  motion  of 
Mr.  Bell,  and  affidavit  filed,  the  court  granted  a  rule  to  show 
cause  why  the  judgment  should  not  be  opened,  and  the  defendant 
let  into  a  defence ;  upon  this  rule  proceeding  similar  to  those  in 
the  first  mentioned  judgment  took  place ;  which  ended  in  a  non- 
suit on  the  9th  of  May,  1833. 

The  plaintiff  having  gone  through  this  evidence ;  the  defendant's 
counsel  asked  the  court  for  a  non-suit,  upon  the  ground  that  the 
case  contained  and  set  out  in  the  declaration,  had  not  been  proved ; 
which  the  court  declined  to  grant.  The  defendant  then  went  into 
evidence  of  the  value  of  the  property,  and  produced  the  bonds 
and  mortgage,  and  also  the  record  of  another  judgment  by  Will 
iam  Lee  against  Cornelius  Conard,  to  the  same  term,  for  the  sum 
of  1030  dollars,  upon  Avhich  a  fieri  facias  issued  on  the  30th  of 
July,  1821,  to  August  Term,  No.  39,  endorsed  to  levy  $583  59, 
with  costs  and  interest  as  in  the  other  cases,  and  which  was  in  the 
hands  *of  the  sheriff  at  the  same  time  with  the  writs  r*-i£-n 
Nos.  37  and  38,  and  used  for  the  condemnation  of  the  *- 
property.  The  record  also  showed,  that  satisfaction  was  acknowl- 
edged of  this  judgment  on  the  8th  of  May,  1833. 

The  evidence  having  been  closed  on  both  sides,  the  defendant's 
counsel  requested  the  court  to  charge  the  jury : 

"  1.  That  the  case  as  set  out  in  the  declaration,  is  not  supported 
by  the  proof  adduced. 

"2.  That  to  maintain  the  action,  it  is  necessary  to  prove  both 
malice  and  want  of  probable  cause,  as  well  as  particular  special 
damage. 

"3.  That  malice  is  not  necessary  to  be  inferred  from  the  want 
of  probable  cause,  and  whenever  opportunity  is  given  to  apply  to  the 
court  from  which  the  process  issues,  malice  is  never  to  be  inferred. 

"  4.  That  it  was  in  the  power  of  Cornelius  Conard,  and  it  was 
his  duty  to  have  applied  to  the  court  in  this  case,  at  the  Novem- 
ber Term,  1831,  to  open  both  judgments  and  set  aside  both  exe- 
cutions ;  and  it  was  still  more  his  duty  to  have  given  notice  to  the 
sheriff  of  the  order  of  the  court  to  stay  proceedings,  of  the. 13th 
December,  1831 ;  and  having  failed  to  do  so,  the  damage  of  which 
he  complains,  was  the  result  of  his  own  negligence ;  and  he  cannot 
maintain  this  action. 

"5.  That  probable  cause  upon  facts  admitted  or  proved,  is  a 
question  of  law  for  the  court ;  and  the  testimony  of  Richard  Pryor, 
Jr.,  does  not  preclude  the  probability  that  Mr.  Lee  supposed  he 
had  the  right  to  hold  the  $530  note,  as  he  originally  held  it,  with 
the  collateral  security  of  the  bond  then  in  his  hands ;  and  while 
there  is  room  for  such  a  probability  left  by  the  evidence,  this 
action  does  not  lie. 


161  SUPREME  COURT  [Dec.  Term, 

(Lee  v.  Conard.) 

"6.  That  the  suffering  a  non-suit  is  no  evidence  of  malice  or 
want  of  probable  cause. 

"7.  That  the  condemnation  under  the  first  and  second  judg- 
ments, shows  no  special  damage ;  because  there  was  at  the  same 
moment,  a  condemnation  under  a  valid  and  admitted  judgment, 
and  according  to  all  the  proofs  in  the  case*,  adequate  ground  for 
condemnation,  independently  of  the  first  judgment. 

"8.  That  it  was  essential  that  the  plaintiff  should  have  proved 
that  the  lands  and  tenements  mentioned  in  the  declaration,  were, 
at  the  time  of  the  sale,  the  lands  and  tenements  of  him,  the  said 
Cornelius  Conard ;  that  before  the  jury  find  for  the  plaintiff,  they 
must  be  satisfied  that  the  said  lands  and  tenements  were  the  lands 
and  tenements  of  the  plaintiff,  and  that  there  has  been  no  evidence 
of  that  fact." 

The  presiding  judge,  after  stating  the  action  and  pleadings,  pro- 
ceeded to  charge  -the  jury  as  follows : 

T*1  fi21  *  "  ^e  defendant's  counsel  contend  that  this  action  in 
its  character  is  highly  penal,  imputing  to  the  defendant 
great  impropriety  of  conduct ;  and  that  as  is  the  law  in  criminal 
cases,  all  presumptions  are  in  favor  of  his  innocence,  to  be  rebut- 
ted, only  by  direct  and  positive  evidence.  The  plaintiff  must  make 
out  his  case  by  clear  and  undoubted  evidence.  If  he  shall  have 
failed  to  establish  to  your  entire  satisfaction,  any  one  essential 
fact  in  the  cause,  he  is  not  entitled  to  your  verdict. 

"  I  shall  notice  in  the  course  of  my  observations  to  you,  the 
several  points  of  law  made  by  the  defendant's  counsel ;  but  it  will 
aid  your  inquiries  to  have  the  law  applicable  to  the  evidence  in 
this  case  stated  in  a  single  proposition,  and  it  is  this: — If  the  de- 
fendant, William  Lee,  knowing  that  the  judgment  bonds  in  ques- 
tion had  been  paid  to  him,  afterwards  proceeded,  by  means  of  legal 
process  founded  upon  them,  to  injure  the  plaintiff,  to  sell  his 
land,  with  the  fraudulent  intent  of  obtaining  an  unjust  advantage 
to  himself,  by  compelling  a  second  payment ;  or  with  the  malicious 
intent  of  injuring  the  plaintiff,  this  action  lies ;  and  there  is  no 
matter  of  law  objected  in  the  case,  that  will  prevent  your  giving 
a  verdict  for  the  plaintiff.  You  will  observe  that  it  is  essential  to 
the  plaintiff's  cause,  that  he  should  prove  to  your  entire  satisfac- 
tion, not  only  that  the  judgments,  and  the  bonds  in  question,  were 
fully  paid,  and  that  the  defendant  knew  of  their  payment  before 
taking  out  execution,  but  also,  that  the  defendant  sold  the  plain- 
tiff's property  with  the  fraudulent  intent  of  obtaining  a  second 
payment  of  the  debt,  or  with  the  malicious  motive  of  injuring  the 
plaintiff. 

"Before  entering  upon  an  examination  of  the  evidence,  I  will 
dispose  of  some  points  of  law,  made  by  the  counsel.  The  plain- 
tiff's evidence  goes  to  prove  that  the  bonds  in  question,  if  paid  at 


1835.]  OF  PENNSYLVANIA.  162 

(Lee  v.  Conard.) 

all,  were  paid  before  judgments  were  entered.  The  declaration 
states  that  the  judgments  were  paid.  The  defendant's  counsel 
took  the  earliest  opportunity  of  objecting  to  any  evidence  of  pay- 
ment of  the  bonds,  before  the  judgments  were  entered,  and  have 
repeated  these  objections.  These  judgments  were  entered  under 
warrants  of  attorney  accompanying  the  bonds.  If  the  bonds 
were  paid,  the  rightful  authority  to  enter  judgments  upon  them 
ceased,  and  the  judgments  thus  improperly  entered,  it  is  said, 
were  paid  jugments.  This,  however,  is  matter  of  law,  and  I  need 
not  observe  upon  it.  It  is  enough  for  me  to  say,  in  my  directions 
to  you  on  this  point,  that  the  declaration  is  sustained  by 
proof  that  the  bonds  were  paid,  before  the  judgments  were 
entered  upon  them.  So,  also,  as  to  the  time  of  the  inquisition 
and  sale.  The  declaration  states  the  condemnation  under  the 
fieri  facias  to  have  been  the  30th  July,  1831.  It  was  15th  Sep- 
tember, 1831.  The  sale  under  the  venditioni  exponas,  to  have 
been  21st  November,  1831.  It  was  December  27th,  1831. 
These  variances  between  the  evidence  and  the  declaration,  are 
not  material. 

*"  The  declaration  is  supported  by  the  proofs  adduced.  ^^  ™-. 
— ( Answer  to  the  first  point.*) 

"  The  defendant's  counsel  are  right  in  saying  in  their  eighth 
point  '  it  was  essential  that  the  plaintiff  should  have  proved  that 
the  lands  and  tenements  mentioned  in  the  declaration  were  at  the 
time  of  the  sale  the  lands  and  tenements  of  him  the  said  Corne- 
lius Conard — that  before  the  jury  find  for  the  plaintiff,  they  must 
be  satisfied  that  the  said  lands  and  tenements  were  the  lands  and 
tenements  of  the  plaintiff.'  But  they  are  wrong  in  saying  'that 
there  has  been  no  evidence  of  that  fact.'  There  is,  in  point  of 
law,  evidence  in  the  cause  which  will  justify  you  in  finding  that 
they  were. — {Answer  to  the  eighth  point.') 

"  The  defendant's  seonnd  point  is  law, '  To  maintain  this  action  it 
is  necessary  to  prove  both  malice  and  want  of  probable  cause,  as 
well  as  particrlar  special  damage.'  And  now  as  to  the  facts ; 
were  the  bonds,  the  judgments  in  question  fully  paid,  and  did  the 
defendant  know  that  they  were,  before  executions  were  issued  by 
him  upon  them  ?  This  is  the  first  matter  of  inquiry." 

After  stating  the  agreement  between  the  parties,  the  mortgage, 
bonds,  and  notes — the  judgments  entered  by  warrant  of  attorney 
on  the  bonds,  the  fieri  facias  and  condemnation  on  each,  the  judge 
said, 

"  Perhaps  you  will  think  there  is  satisfactory  evidence  that  the 
bond  on  which  the  first  judgment  was  entered,  was  paid,  before 
judgment  entered." 

After  stating  the  venditioni  on  the  second  judgment  No.  38 
and  the  proceedings  under  it,  the  orders  of  court,  declaration,  plea 
of  payment  and  nonsuit,  the  judge  said, 


163  SUPREME  COURT  [Dec.  Term, 

(Lee  v.  Conard.)  '  f 

"  The  defendant's  sixth  point  is,  *  the  suffering  a  nonsuit  is  no 
evidence  of  malice  or  want  of  probable  cause.'  I  do  not  think, 
independent  of  Richard  Pryor's  evidence,  that  this  bond,  the 
second  judgment,  under  which  the  plaintiff's  property  was  sold, 
was  paid.  The  defendant  has  in  his  possession,  not  only  the 
mortgage  and  bond,  but  also  the  accompanying  note  for  $530. 
This  part  of  the  plaintiff's  case,  therefore,  must  depend  upon 
Richard  Pryor's  testimony.  The  non-suit,  might,  perhaps,  be 
considered  a  circumstance  in  the  cause,  but  without  Pryor's  evi- 
dence, the  plaintiff  must  fail.  I  will,  therefore,  under  the  circum- 
stances, instruct  you,  as  I  am  desired  to  do  by  the  defendant's 
counsel,  that  '  the  suffering  a  nonsuit  is  no  evidence  of  malice  or 
want  of  probable  cause.'  The  fact  of  payment,  in  this  view  of 
the  law,  is  made  to  rest  exclusively,  upon  the  testimony  of  Rich- 
ard Pryor.  If  you  doubt  his  credibility,  if  his  testimony,  stand- 
ing by  itself,  does  not  establish  to  your  entire  and  perfect  satis- 
faction, that  the  bond  in  question,  the  second  judgment,  was  paid 
to  the  defendant  before  he  issued  the  executions  in  question,  you 
will  find  for  the  defendant." 

After  stating  Richard  Pryor's  evidence  relating  to  this  matter 
of  inquiry,  the  judge  said  to  the  jury, 

l~*1  fUT  *  y°u  are  satisfied  from  Poor's  evidence,  that  the 
J  bond,  the  second  judgment  under  which  the  plaintiff's 
property  was  sold,  was  paid  to  the  defendant  before  the  execution 
issued,  the  next  inquiry  will  be,  what  was  the  object,  the  motive, 
the  intent  of  the  defendant  in  selling  the  plaintiff's  property 
under  the  execution  ? 

"  Pryor  says,  that  the  note  for  $530  accompanying  the  bond 
in  question,  was  on  the  17th  of  May,  1831,  delivered  by  him  to 
the  defendant,  to  be  held  as  collateral  security  for  the  payment 
of  any  note  or  notes  which  he,  the  defendant,  might  indorse  for 
John  Conard's  accommodation.  Taking  the  fact  to  be  so,  the 
defendant's  counsel  contend,  that  in  fairness  and  common  honesty, 
you  are  to  presume  that  the  defendant  entered  up  the  judgment 
on  this  bond,  took  out  execution  and  proceeded  to  sell  the 
plaintiff's  land  to  indemnify  himself  against  loss  from  his  en- 
dorsements for  John  Conard,  for  which  purpose  the  accompany- 
ing note  was  placed  in  his  hands  by  Richard  Pryor,  as  collateral 
security,  in  connection  with  the  bond.  Now,  however  much  the 
defendant  may  have  mistaken  the  law  in  the  matter,  if  he,  from 
honest  motives  and  with  a  fair  intent,  took  out  execution,  and 
sold  the  plaintiff's  property  for  the  purpose  of  indemnifying 
himself  against  his  endorsements  for  John  Conard ;  believing  or 
supposing  that  the  deposit  of  the  note  in  his  hands  by  Pryor 
gave  him  the  right  to  do  so,  the  plaintiff  cannot  recover  by 
reason  of  any  damage  he  may  have  sustained.  Or,  in  other 


1835.]  OF  PENNSYLVANIA.  164 

(Lee  v.  Conard.) 

words,  and  perhaps,  as  the  circumstances  are,  in  plainer  lan- 
guage, you  must  find  (if  you  give  a  verdict  for  the  plaintiff) 
that  the  itttent  of  the  defendant  was  unjust  gain  to  himself,  by  de- 
nying the  payment,  and  attempting  to  compel  by  means  of  the 
execution  a  second  payment  of  the  debt ;  or  that  he  was  influenced 
by  sheer  malice  against  the  plaintiff.  These  observations  apply 
to  defendant's  fifth  point." 

After  stating  the  evidence  relating  to  this  matter  of  inquiry,  the 
judge  said, 

"  If  you  find  the  intent  of  the  defendant  in  taking  out  the  exe- 
cution and  selling  the  plaintiff's  property  under  it,  to  have  been 
unfair  and  dishonest,  that  his  object  was  fraudulently  to  compel  a 
second  payment  of  the  debt  by  means  of  the  execution,  and  not  to 
indemnify  himself  against  his  endorsements  for  John  Conard,  then 
your  next  inquiry  will  be  as  to  damages.  I  intend  to  say  a  few 
words  to  you  on  this  point,  but  before  doing  so,  I  will  dispose  of 
the  defendant's  points. 

The  first  and  second  points,  I  have  already  answered. 

As  to  the  third  point,  '  malice  is  not  necessarily  to  be  inferred 
from  the  want  of  probable  cause  ;'  but  it  may  be  inferred,  although 
*  opportunity  is  given  to  apply  to  the  court,  from  which  the  pro-, 
cess  issued.' 

The  direct  answer  to  the  defendant's  fourth  point,  is  that  the 
plaintiff  can  maintain  this  action.  I  have  already  observed  upon 
these  allegations.  They  are  circumstances  in  the  cause,  and  if 
the  *plaintiff  purposely  lay  by,  and  omitted  to  apply  to  r*  155-1 
the  court  for  protection,  or  to  avail  himself  of  that  pro- 
tection when  granted,  with  a  view  to  this  action,  or  from  any 
sinister  motive,  we  would  disappoint  his  expectations  of  damages. 
There  is,  from  the  evidence,  no  sufficient  ground  to  say  that  he 
did. 

(Fifth  point.) — I  have,  I  believe,  substantially  answered  the 
defendant's  fifth  point.  Probable  cause,  upon  facts  admitted  or 
proved,  is  a  question  of  law  for  the  court ;  but  questions  of  law 
rest  upon  facts  and  not  upon  probabilities.  It  is  a  question  of 
fact,  what  right  William  Lee  supposed  he  had  to  the  note.^ 

The  sixth  point  I  have  noticed.  The  seventh  point  is  right 
The  eighth  point  I  have  answered." 

He  then  stated  to  the  jury  the  questions  of  fact ;  confined  their 
inquiries  to  the  second  count  in  the  declaration  ;  and  said  : 

"  It  appears  to  me,  that  under  the  circumstances,  it  would  be 
fair  that  you  should  fix  the  value  of  plaintiff's  property  at  the 
highest  price  he  could  have  obtained  for  it,  at  private  sale  ;  deduct 
from  that  sum  the  price  which  it  brought  at  the  sale  in  question ; 
add  interest  upon  the  balance,  together  with  the  plaintiff's  actual 
personal  expenses,  the  costs'  and  charges  which  he  incurred  for 


165  SUPREME  COURT  [Dec.  Term, 

(Lee  v.  Conard.) 

his  witnesses  in  attending  upon  the  court  on  the  several  hearings 
of  the  rules,  and  reasonable  compensation  for  fees  to  his  attor- 
neys. All  beyond  full  compensation  for  the  injuries  actually  sus- 
tained, has  been  called  in  the  argument,  vindictive  damages.  To 
such  damages  I  have  always  been  opposed,  and  shall  look  upon  a 
verdict  for  vindictive  damages  with  disfavor.  You  have  the  power 
to  give  exemplary  damages ;  but  you  are  to  consider  and  say  if 
you  will  do  it." 

The  jury  having  found  a  verdict  for  the  plaintiff,  with  $2,850 
damages,  the  defendant  removed  the  record  to  this  court,  and  as- 
signed the  following  errors: 

"  I.  The  case,  as  set  out  in  the  declaration,  was  not  sustained 
by  the  evidence ;  because  there  was  no  evidence  of  malice  or  want 
of  probable  cause,  nor  the  best  evidence  within  the  plaintiff's 
power,  nor  sufficient  evidence  of  the  payment  of  the  note  accom- 
panying the  bond  upon  which  the  judgment  named  in  the  second 
count  of  the  narr.  was  entered  ;  nor  any  evidence  of  the  pay- 
ments as  averred  in  the  narr. ;  nor  any  evidence  of  the  issuing  of 
execution,  levy,  condemnation  and  sale  as  averred  ;  nor  was  there 
any  evidence  that  the  plaintiff  had  any  title  to  the  lands  and  tene- 
.  ments  mentioned  in  his  narr. 

II.  If  the  defendant  had  not  sufficient  cause  to  proceed  as  com- 
plained of  in  the  narr.,  yet  the  plaintiff  having  neglected  to  avail 
himself  of  the  interposition  of  the  court,  the  defendant  is  relieved 
from  the  imputation  of  malice,  and  not  liable  in  damages  by  reason 
of  any  thing  alleged  or  proved. 

F*1fifiT  *IH-  The  defendant  was  not  liable  to  any  damages, 
because  there  were  no  damages  proved  to  have  been  sus- 
tained in  the  condemnation  or  by  the  sale  ;  nor  could  there  have 
been  any  damage  done  to  the  plaintiff  by  reason  of  the  proceed- 
ings complained  of  in  the  narr.  because  the  other  and  undisputed 
incumbrances  must  have  worked  a  condemnation,  and  procured 
a  sale  of  the  land  ;  moreover,  the  plaintiff  wholly  failed  to  prove 
he  had  any  title  to  the  land  sold,  and  omitted  to  exert  a  rule 
which  he  obtained,  in  time  to  set  aside  the  writ  under  which  the 
sale  was  made,  with  a  special  order  for  proceedings  to  be  staid 
thereon,  by  neglecting  to  give  the  defendant  or  the  sheriff  notice 
thereof ;  and  also  because  said  judgments  were  known  to,  and  it 
was  in  the  power  of  the  plaintiff  to  have  prevented  any  measures 
thereon  before  the  sale,  by  an  application  to  the  court  to  open 
said  judgments. 

IV.  There  was  not  the  best  evidence  of  which  the  case  was  sus- 
ceptible, nor  was  there  sufficient  evidence  of  the  payment  of  the 
note  accompanying  the  bond  upon  which  the  judgment  named  and 
complained  of  in  the  second  count  of  the  narr.  was  entered  ;  and 
without  sufficient  and  full  proof  of  this  fact,  the  defendant  had 


1835.]  OF  PENNSYLVANIA.  166 

(Lee  v.  Conard. ) 

such  a  probable  cause  of  action  as  will  relieve  him  from  the 
charge  of  a  want  thereof,  and  also  of  malice. 

V.  The  judge  erred  in  permitting  the  plaintiff  to  prove  the 
matters  stated  in  his  opening,  because  they  were  wholly  different 
from  those  complained  of  by  the  narr. ;  and  also  in  permitting 
the  plaintiff  to  give  in  evidence  the  written  agreement  under  date 
of  March  25,  1829 ;  and  also  in  permitting  plaintiff  to  give  in 
evidence  the  notes  ;  and  also  in  permitting  R.  Pryor,  Jr.,  to  give 
evidence  of  the  matters  he  affirmed  to ;  and  also  in  permitting 
the  plaintiff  to  put  in  evidence  the  copies  of  the  records  of  the 
court  of  Common  Pleas  of  Chester  county  ;  and  also  in  charging 
the  jury  that  if  it  appeared  to  their  satisfaction  that  the  notes 
connected  with  the  bonds  upon  which  the  judgments  named  in  the 
narr.  were  entered,  had  been  paid,  there  was  no  point  made  by 
the  defendant  that  would  prevent  them  from  giving  damages 
against  the  defendant ;  and  also  in  charging  the  jury  that  if  the 
notes  were  paid  as  alleged,  it  was  sufficient  evidence  of  the  pay- 
ment of  the  bonds  as  declared,  and  that  the  variance  between  the 
evidence  of  the  time  of  issuing  executions,  condemnation  and  sale, 
and  the  time  laid  in  the  narr.,  was  immaterial;  and  that  the 
plaintiff  did  own  the  land  at  the  time  of  the  sale ;  and  that  the 
plaintiff  had  paid  the  defendant  $500  in  cash  when  he  bought  the 
Jersey  farm  of  the  defendant ;  and  in  not  charging  the  jury  upon 
the  fifth  point  submitted  by  the  defendant  for  a  charge ;  and  in 
charging  the  jury  that  the  fourth  point  did  not  bar  this  action : 
and  that  it  did  not  appear  that  the  plaintiff  knew  of  the  second 
venditioni  exponas  before  the  sale ;  and  that  they  might,  in  meas- 
uring the  damages,  allow  the  plaintiff  full  price  for  the  land, 
actual  expenditures,  and  all  the  incidental  expenses  of  his  wit- 
nesses, *and  full  and  reasonable  compensation  for  his  r*ig7i 
attorneys,  and  interest  thereon." 

Mr.  Brewster,  for  the  plaintiff  in  error,  argued,  1.  That  the 
evidence  ought  not  to  have  been  admitted  by  the  judge  below, 
because  it  was  not  in  conformity  with  the  declaration.  2.  That 
the  charge  of  the  judge  was  erroneous. 

He  cited  Dixon  v.  Thompson  (2  Shower,  246 ;)  Purcel  v. 
M'Namara,  (8  East,  361 ;)  Anon.  (6  Mod.  73 ;)  HutcUnson  v. 
Brodie,  (Cro.  Jac.  133 ;)  Cro.  Eliz.  836 ;  1  Bos.  &  Pull.  205  ; 
12  Petersdorff,  419;  Johnson  v.  Sutton,  (1  Term  Rep.  545; 
Davis  v.  Hardy,  (13  Eng.  Com.  Law  Rep.  152 ;  6  Barn.  & 
Cress.  225 ;)  Munro  v.  Dupont,  (3  Wash.  C.  C.  Rep.  31 ;)  Ray 
v.  Low,  (1  Peters'  C.  C.Rep.  207  ;)  2  Dane's  Abridgement,  723 
§  12,  724  §  8,  726  §  6 ;  4  Mass.  Rep.  433 ;  3  Hen.  &  Munf.  260 ; 
11  Mass.  Rep.  50;  Douglas'  Rep.  215;  2  Term  Rep.  225;  2 
Wilson,  210 ;  Oliver's  Precedents,  126,  369  (n),  372  (n). 


167  SUPREME  COURT  [Dec.  Term, 

(Lee  v.  Conard.) 
Mr.  Conard  and  Mr.  Tilghman  contra. 

The  opinion  of  the  court  was  delivered  by 

KENNEDY  J.  Several  errors  have  been  assigned,  one  of  which, 
only,  appears  to  be  sustainable.  The  others  are  so  totally  desti- 
tute of  even  plausibility,  that  it  is  unnecessary  to  notice  them 
otherwise  than  to  pronounce  their  entire  want  of  every  thing  that 
can  present  itself  to  the  consideration  of  a  court  of  error,  as  a 
ground  for  relief.  The  error  that  we  are  inclined  to  consider 
fatal,  is  founded  on  the  exception  to  the  opinion  of  the  court,  in 
admitting  the  testimony  of  Richard  Pryor,  to  prove  that  the  bond 
given  to  secure  the  payment  of  the  debt,  for  which  the  judgment 
had  been  entered,  in  virtue  of  a  warrant  of  attorney  thereto  an- 
nexed, was  paid  before  the  entry  of  the  judgment.  The  question 
then  is,  did  this  evidence  tend  to  support  the  averments  contained 
in  the  plaintiff's  declaration  ?  Because  if  it  did,  it  was  rightly 
admitted ;  but  if  it  did  not,  then  it  ought  to  have  been  rejected. 
In  regard  to  this  point,  there  is  no  rule  better  established,  than 
that  the  probata  ought  to  agree  with  the  allegata.  Now,  what  is 
it  that  the  plaintiff  has  alleged,  as  to  this,  in  his  declaration.  He, 
in  substance  complains,  that  the  defendant  wrongfully  and  un- 
justly sued  out  an  execution  upon  a  judgment  which  he  had 
against  the  plaintiff,  after  it  had  been  actually  paid ;  and  by  virtue 
thereof  wrongfully  and  unjustly  caused  the  land  of  the  plaintiff 
to  be  seized  and  sold  at  $1500  less  than  its  real  value.  But  the 
evidence  offered  and  admitted,  was  not  to  show  that  the  judgment 
had  been  paid,  but  that  the  debt  for  which  the  judgment  had 
been  entered,  was  paid,  before  the  entry  thereof.  This  was  cer- 
tainly not  in  accordance  with  the  plaintiff's  allegation.  For, 
although  it  might  be  making  out  a  more  aggravated  case  of  in- 

F*1fi8~l  Jury  ^an  ^at  se^  f°rth  *n  his  declaration,  still  it  *was 
not  in  terms  nor  yet  in  substance  the  same :  Because,  by 
his  declaration,  he  seems  to  admit  the  correctness  and  justness  of 
the  judgment  originally,  but  alleges  that  it  had  been  paid,  and 
therefore  it  was  wrong  and  unjust  in  the  defendant  to  sue  out  the 
execution  upon  it,  and  to  cause  his,  the  plaintiff's  land,  to  be  sacri- 
ficed or  sold  for  $1500  less  than  its  value.  The  plaintiff  having 
thus  admitted  that  the  judgment  was  properly  entered,  it  is  clear 
that  the  defendant  had  no  occasion  to  come  prepared  at  the  trial, 
to  maintain  it  to  be  so.  It  was  sufficient,  in  order  to  meet  the 
allegation  of  the  plaintiff,  that  the  defendant  came  prepared  to 
show,  that  the  judgment  had  not  been  paid  or  satisfied  at  any 
time  after  it  was  entered,  and  previously  to  suing  out  the  execu- 
tion and  making  sale  of  the  land  under  it.  But  the  evidence  of 
Pryor,  instead  of  going  to  support  the  allegation  that  the  judg- 
ment had  been  paid,  went  to  prove  that  the  debt  for  which  it  was 


1835.]  OF  PENNSYLVANIA.  168 

(Lee  v.  Conard.) 

entered,  had  been  paid  prior  to  the  entry  thereof;  and  that  the 
authority  originally  given  for  entering  the  judgment,  had  thereby 
been  revoked,  and  that  the  judgment  was  therefore  to  be  consid- 
ered a  nullity.  To  say  the  least  of  it,  this  was  presenting  the  case 
in  an  aspect  quite  different  from  that  given  to  it  in  the  declaration. 
That  it  is  materially  different,  too,  was  decided  by  this  court  at 
the  last  term  at  Pittsburg,  in  Braddy  v.  Brownfield,  which  will 
be  reported  in  4  Watts ;  where,  in  an  action  founded  upon  our  act 
of  Assembly,  against  a  plaintiff  in  a  judgment  entered  in  his  favor 
on  a  judgment  bond,  for  not  entering  satisfaction  in  the  prothono- 
tary's  office,  where  the  judgment  existed,  after  being  paid  the 
amount  thereof,  it  was  ruled  that  evidence  going  to  show  that  the 
debt  or  bond  had  been  paid  and  satisfied  before  the  entry  of  the 
judgment,  was  properly  rejected  by  the  court  below,  on  the  trial 
of  the  cause.  It  being  thus  settled,  that  the  payment  or  satisfac- 
tion of  a  debt  mentioned  in  a  judgment  bond,  before  the  entry  of 
a  judgment  upon  it,  does  not  mean  the  same  thing  with  the  pay- 
ment or  satisfaction  of  the  judgment  after  it  is  entered ;  the  de- 
fendant in  the  present  case,  had  no  reason  to  expect  that  such 
evidence  as  that  of  Pryor's  would  be  offered,  or  if  offered,  that  it 
would  be  received,  and,  therefore,  was  not  bound  to  come  prepared 
to  encounter  it.  If  the  plaintiff's  case  really  be,  that  the  debt 
was  paid  prior  to  the  entry  of  the  judgment  upon  which  the  exe- 
cution was  sued  out  and  the  land  sold,  then,  instead  of  insisting 
upon  having  his  evidence  admitted,  he  ought  first  to  have  had  his 
declaration  aniended  by  leave  of  the  court.  This,  I  presume,  the 
court  would  have  permitted  him  to  do,  so  as  to  meet  the  evidence ; 
but,  then,  the  defendant,  if  not  prepared  to  answer  to  the  declara- 
tion in  its  amended  form,  woulcThave  been  entitled  to  the  costs  of 
the  term,  and  a  postponement  of  the  trial  until  the  succeeding 
term.  It  may  be  also,  that  the  declaration  is  defective  in  not 
stating  that  the  proceeding  of  the  defendant,  complained  of  by 
the  plaintiff,  was  done  maliciously,  and  with  an  intent  to  injure 
and  oppress,  $c.  Groslin  *v.  Wilcock,  2  Wils.,  305,  p^ggi 
instead  of  stating  it  as  it  is,  to  have  been  done  wrong- 
fully and  unjustly,  with  intent,  &c.  As  this,  however,  has  not 
been  assigned  for  error,  it  is  unnecessary  to  express  an  opinion 
upon  it. 

The  judgment  is  reversed,  and  a  venire  de  novo  awarded. 


169  SUPREME  COURT  [Dec.  Term, 

[PHILADELPHIA,  JANUARY  26,  1836.  ] 

THE  BANK  OF  WILMINGTON,  &c.,  against  ALMOND  and 

Others. 

IN    ERROR. 

A.,  B.,  C.  and  D.,  copartners  under  the  firm  of  A.  &  Co.,  gave  their  pro- 
missory note  to  the  plaintiffs.  Afterwards  the  partnership  was  dissolved 
by  the  retirement  of  A.,  the  business  being  continued  by  the  others, 
under  the  firm  of  B.  &  Co. ;  and  a  bond  of  indemnity  was  given  by  them 
to  A.  against  the  debts  of  the  old  firm.  The  firm  of  B.  &  Co.  failed,  and 
executed  an  assignment  of  their  effects  in  trust  for  the  payment  of  their 
creditors ;  and  a  release  of  all  demands  was  executed  by  the  creditors, 
among  whom  were  the  plaintiffs,  who  received  a  dividend  from  the 
assignees,  on  the  note  of  A.  &  Co.  Held,  that  by  these  acts  of  the 
plaintiffs,  A.  was  discharged  from  his  liability  to  them. 

THIS  was  a  writ  of  error  to  the  District  Court  for  the  City 
and  County  of  Philadelphia,  to  remove  the  record  of  an  action 
of  assumpsit  brought  by  the  bank  of  Wilmington  and  Brandy- 
wine  against  William  Almond,  William  Warner,  John  Torbert, 
and  Lewis  Summerl,  lately  trading  under  the  firm  of  William 
Almond  &  Co. 

The  action  was  founded  on  a  promissory  note  drawn  by  the 
defendants,  Almond,  Warner,  Torbert,  and  Summerl,  as  co- 
partners, under  the  firm  of  William  Almond  &  Co.,  in  favor  of 
the  plaintiffs,  for  $1180,  dated  July  1st,  1822,  payable  two  years 
after  date. 

The  suit  was  commenced  by  capias  to  December  term,  1824,  to 
which  a  return  of  "C.  C.  &  B.  B.  as  to  William  Almond  &  N.  E. 
I.  as  to  the  other  defendants,"  was  made.  An  alias  capias  issued 
to  March  term,  1825,  and  return  made,  C.  C.  &  B.  B.  as  to  Lewis 
Summerl,  &  N.  E.  I.  as  to  the  other  defendants. 

The  defendants,  Almond  and  Summerl,  who  had  been  brought 
in,  signed  an  agreement  for  judgment  in  favor  of  the  plaintiifs, 
"for  the  sum  of  $1248  78,  on  the  17th  of  June,  1825,  as  on  an 
award  of  arbitrators  of  that  date;"  which  agreement  was  filed 
and  judgment  entered  on  the  14th  of  March,  1826. 

On  the  28th  of  March,  1826,  the  defendant,  Almond,  by  his 
counsel,  upon  affidavit  filed,  obtained  "  a  rule  to  show  cause  why 
r*17(Yl  judgment  *  should  not  be  opened,  and  the  defend- 

ants let  into  a  defence  ;"  which  rule  was  made  absolute, 
and  the  judgment  opened  on  the  5th  of  December,  1826. 

Upon  the  trial  of  the  cause,  the  plaintiff  gave  in  evidence  the 
promissory  note  in  question,  and  there  rested  his  case. 

The  defendant,  Almond,  by  his  counsel,  in  defence  gave  the 
following  matters  in  evidence,  viz: 


1835.]  OF  PENNSYLVANIA.  170 

(Bank  of  Wilmington  v.  Almond.) 

A  notice  of  the  dissolution  of  the  firm  of  William  Almond  & 
Co.,  published  in  the  American  Watchman,  and  Delaware  Adver- 
tiser of  Wilmington,  (Del.)  of  April  1st,  1823,  as  follows: 

Dissolution  of  Partnerships. 

The  partnership  of  William  Almond  &  Co.  is  this  day  dissolved 
by  mutual  consent.  All  persons  having  accounts  with  them,  will 
call  on  Lewis  Summerl  &  Co.,  at  the  factory,  for  settlement. 

WILLIAM  WARNER, 
JOHN  TORBERT, 
WILLIAM  ALMOND, 
LEWIS  SUMMERL. 

"  The  business  of  the  Nemours  Cotton  Mill,  on  the  Brandywine, 
will  be  continued  by  the  subscribers,  under  the  firm  of  Lewis 
Summerl  &  Co. 

WILLIAM  WARNER, 
JOHN  TORBERT, 
LEWIS  SUMMERL. 
Nemours  Cotton  Mils,  March  28, 1823." 

The  defendant  then  gave  in  evidence  a  bond  of  indemnity  in 
the  penal  sum  of  $10,000,  dated  the  22d  day  of  March,  1823, 
from  Warner,  Torbert,  and  Summerl,  to  Almond,  reciting,  that 

"  Whereas  the  said  William  Almond,  William  Warner,  John 
Torbert  and  Lewis  Summerl,  heretofore  formed  a  partnership 
under  the  style  of  William  Almond  &  Co.,  and  carried  on  the 
business  of  cotton  spinning,  in  a  cotton  mill  formerly  known  by 
the  name  of  Hagley's  Cotton  Factory,  and  since  called  Nemours 
Cotton  Mill,  which  Eleuthere  Irene  du  Pont,  Samuel  M'Call,  and 
Robert  M'Call,  by  their  deed,  bearing  date  the  twenty-eighth  day 
of  May,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
twenty-two,  leased  and  demised  to  the  said  William  Warner,  John 
Torbert,  and  William  Almond,  for  a  certain  term  now  unexpired ; 
and  whereas  the  said  William  Almond  has  withdrawn  from  the 
said  concern,  and  the  said  partnership  has  been  this  day  dissolved 
by  mutual  consent,  and  the  said  William  Almond  hath,  by  a  cer- 
tain instrument,  under  his  hand  and  seal,  bearing  even  date  here- 
with, granted,  assigned,  and  bargained  and  sold,  all  his  interest, 
title,  property  and  claim  in  the  said  lease,  and  in  and  to  all  of  the 
goods,  effects  and  *credits  of  the  said  partnership,  and  p-j^i-i 
in  and  to  all  contracts  made  with  the  same,  subject  to 
the  debts,  covenants,  contracts  and  engagements  thereof,  and  sub- 
ject, also,  to  the  covenants  and  contracts  in  the  said  lease  con- 
tained, to  the  said  William  Warner,  John  Torbert,  and  Lewis 
Summerl :  and  whereas,  the  said  William  Warner,  John  Torbert, 
and  Lewis  Summerl,  have  agreed  to  pay,  and  the  said  William 
Almond  to  receive,  such  sum  of  money  as  may  be  due  to  the  said 


171  SUPREME  COURT  \J)e?.  Term, 

(Bank  of  "Wilmington  v.  Almond.) 

William  Almond  on  the  book  of  the  said  partnership,  in  manner 
following:  that  is  to  say,  provided  the  said  balance  shall  not 
exceed  one  thousand  five  hundred  dollars,  the  same  shall  be  paid 
in  four  equal  installments,  at  the  expiration  of  three,  six,  nine 
and  twelve  months,  respectively,  with  lawful  interest  thereon,  from 
the  date  hereof,  but  if  the  said  sum  shall  exceed  one  thousand 
five  hundred  dollars,  then  one  thousand  five  hundred  dollars 
thereof  shall  be  paid  in  four  equal  installments  as  aforesaid,  and 
the  residue  thereof  shall  be  satisfied  by  their  promissory  note, 
payable  at  sixty  days  after  the  date  hereof:  and  whereas,  the 
said  William  Almond  hath  agreed  to  continue  in  the  service  of 
the  said  William  Warner,  John  Torbert,  and  Lewis  Summerl,  as 
manager  and  overseer  of  the  said  Nemours  Cotton  Mill,  until  the 
first  day  of  July  next,  if  they  shall  require  him  so  long  to  act  in 
the  said  capacity,  and  hath  agreed  to  relinquish  the  salary,  which 
the  said  partnership  has  heretofore  stipulated  to  pay  to  him,  and 
hath  consented  to  receive  of  the  said  William  Warner,  John  Torbert, 
and  Lewis  Summerl,  for  his  services  as  such  manager  and  over- 
seer, past  and  future,  a  salary  at  the  rate  of  eight  hundred  dol- 
lars per  annum,  the  said  salary  to  commence  at  the  expiration  of 
six  months  after  the  commencement  or  formation  of  the  aforesaid 
partnership  of  William  Almond  &  Co.,  and  to  end  whenever  he 
shall  be  discharged  by  the  said  William  Warner,  John  Torbert, 
and  Lewis  Summerl,  the  said  William  Almond  thereby  freely 
giving  his  services  during  the  first  six  months  after  the  commence- 
ment of  the  said  partnership. 

Now  the  condition  of  this  obligation  is  such,  that  if  the  said 
William  Warner,  John  Torbert,  and  Lewis  Summerl,  do  and  shall 
well  and  truly  pay  all  debts  whatsoever,  due  from  the  said  part- 
nership of  William  Almond  &  Co.,  and  do  and  shall  within  one 
month  after  the  date  hereof,  procure  the  said  William  Almond  to 
be  released  from  the  aforesaid  lease  and  demise,  and  from  the 
rents  and  covenants  therein  reserved  and  contained,  and  do  and 
shall,  well  and  truly,  keep,  perform  and  fulfill,  all  and  every  the 
contracts,  covenants  and  engagements  made  at  any  time  hereto- 
fore, by,  or  on  behalf  of  the  said  partnership,  and  shall  save  and 
keep  harmless,  the  said  William  Almond  from  all  such  debts, 
rents,  covenants,  contracts  and  engagements,  and  from  costs, 
charges  and  expenses,  arising  or  accruing  by  reason  of  the  same. 
And  if  the  said  William  Warner,  John  Torbert,  and  Lewis  Sum- 
merl, do  and  shall,  well  and  truly,  pay  such  sum  of  money  as 
T*172T  may  ^e  ^ue  uPon  ^6  books  *of  the  said  partnership  to 
-I  the  said  William  Almond,  to  him  in  manner  and  form  as 
hereinbefore  recited  to  have  been  agreed  on  ;  and  if  the  said  Wil- 
liam Warner,  John  Torbert,  and  Lewis  Summerl  do  and  shall, 
well  and  truly  pay  to  the  said  William  Almond,  for  his  past  and 


1835.]  OF  PENNSYLVANIA.  172 

(Bank  of  Wilmington  n.  Almond.) 

future  services  as  manager  and  overseer  of  the  said  Nemours 
Cotton  Mill,  the  aforesaid  salary,  at  the  rate  of  eight  hundred  dol- 
lars per  annum,  to  commence  from  the  expiration  of  six  months 
after  the  formation  of  the  said  partnership,  and  to  end  at  the  time 
when  he  shall  he  discharged  from  their  service  as  aforesaid — then 
the  obligation  shall  be  void  and  of  none  effect,  or  else  shall  be  and 
remain  in  full  force  and  virtue,  in  law." 

The  defendant  then  gave  in  evidence  an  indenture,  executed  the 
29th  day  of  October,  1825,  between  William  Warner,  John  Tor- 
bert,  and  Lewis  Summerl,  composing  the  firm  of  Lewis  Summerl 
&  Co.  of  the  first  part,  William  Seal  and  Joseph  Grubb  of  the 
second  part,  and  "  all  other  the  creditors  of  the  said  Lewis  Sum- 
merl &  Co.,  who  shall  have  signed  and  sealed  these  presents,  or 
who  shall  execute  a  release  according  to  the  terms  thereinafter 
mentioned,"  of  the  third  part,  assigning  "unto  the  said  William 
Seal  and  Joseph  Grubb,  all  and  singular,  the  said  machinery,  stock 
and  effects  of  said  company,  debts,  sum  and  sums  of  money  due 
or  belonging  to  said  firm,"  "in  trust,"  (after  deducting  for  rent, 
&c.)  "to  pay,  apply,  and  appropriate  all  the  said  money  arising 
from  the  said  assigned  premises,  to  and  among  all  such  of  the 
creditors  of  the  said  William  Warner,  John  Torbert,  and  Lewis 
Summerl,  trading  under  the  firm  of  Lewis  Summerl  &  Co.,  in 
equal  proportions,  &c.,  as  shall,  within  sixty  days  after  the  date 
of  these  premises,  fully  and  absolutely  release  the  said  Lewis 
Summerl  &  Co.  from  their  respective  debts." 

The  defendant  then  gave  in  evidence  an  instrument,  dated  No- 
vember 18th,  1825,  and  executed  by  the  "  creditors  of  William 
Warner,  John  Torbert,  and  Lewis  Summerl,  cotton  manufacturers 
on  the  Brandywine,  under  the  name  and  firm  of  Lewis  Summerl 
&  Co.,  which,  after  reciting  the  indebtedness  of  Lewis  Summerl  & 
Co.,  and  their  assignment  "for  the  benefit  of  such  of  their  credit- 
ors as  shall  sign  and  execute  a  release  of  their  respective  debts,  at 
or  before  the  expiration  of  sixty  days  from  its  date,"  of  "  all  their 
copartnership,  estate,  real  and  personal,  and  outstanding  debts  of 
every  description," — "released  and  forever  discharged  the  said 
William  Warner,  John  Torbert,  and  Lewis  Summerl,  composing 
the  firm  of  Lewis  Summerl  &  Co.  &c.,  on  the  Brandywine,  in 
the  State  of  Delaware,  their  heirs,  executors,  and  administrators 
respectively,  of  and  from  all,  and  all  manner  of  action  and  actions, 
cause  and  causes  of  action,  suits,  debts,  dues,  duties,  sum  and 
sums  of  money,  accounts,  reckonings,  bills,  specialities,  covenants, 
agreements,  contracts,  promises,  executions,  claims  and  demands, 
whatsoever  or  wheresoever,  in  law  or  equity,  which  we,  or  either 
of  us,  *or  our  copartners  now  have,  or  may  or  can  have,  r*i  731 
claim  or  demand,  for  or  by  reason  of  our  several  and 
respective  debts  or  demands — against  them,  or  either  of  them, 

VOL.  i. — 12. 


173  SUPREME  COURT  [Dec.  Term, 

(Bank  of  Wilmington  «.  Almond.) 

associated  as  aforesaid,  for,  upon,  or  by  reason  of  any  matter, 
cause  or  thing  whatsoever,  to  the  day  of  the  date  hereof,  in  their 
capacity  as  co-partners  aforesaid"  &c.;  among  which  creditors 
was  the  Bank  of  Wilmington  and  Brandy  wine,  the  plaintiffs  in 
this  action ;  the  name  of  John  Wales,  their  president,  being  there- 
unto subscribed,  and  the  seal  of  said  bank  affixed. 

The  defendant  further  gave  in  evidence  an  exhibit  of  the  set- 
tlement of  the  estate  of  Summerl  &  Co.,  in  which  it  appeared 
that  the  assignees  of  said  Summerl  &  Co.  declared  a  dividend  out 
of  the  fund  assigned  by  Summerl  &  Co.,  in  favor  of  the  bank, 
on  the  notes  of  William  Almond  &  Co.,  held  by  the  bank,  as  well 
as  on  notes  of  Warner  and  Torbert  to  Lewis  Summerl  &  Co., 
and  by  them  endorsed,  also  held  by  the  bank ;  and  a  receipt 
signed  by  William  Seal,  then  president  of  said  bank,  dated  March 
3d,  1830,  for  $1211  74,  received  of  said  assignees  of  Summerl  & 
Co.,  "in  full  of  the  final  dividend,"  being  the  aggregate  of  divi- 
dends on  claims  against  Almond  &  Co.  and  Summerl  &  Co.;  and 
here  closed  his  case. 

The  plaintiff  then  gave  in  evidence,  as  rebutting  testimony,  four 
promissory  notes,  the  property  of  said  plaintiffs,  drawn  by  War- 
ner and  Torbert  in  favor  of  Lewis  Summerl  &  Co.,  and  by  them 
endorsed  in  favor  of  the  plaintiffs,  being  the  claim  on  which  a  div- 
idend was  received  by  said  bank,  out  of  the  estate  of  L.  Summerl 
&  Co.;  and  then  closed  his  case. 

Whereupon  the  court  charged  the  jury,  in  substance  as  follows : 

"  The  note  on  which  this  action  is  brought,  was  given  by  the 
firm  of  William  Almond  &  Co.  It  has  not  been  paid ;  and  the  de- 
fendant is  liable  in  this  action,  if  he  has  not  been  discharged  by 
the  plaintiff.  The  dissolution  of  the  firm  of  William  Almond  & 
Co.  took  place  on  or  about  the  1st  of  April,  1823 ;  when  all  the 
copartners,  except  William  Almond,  entered  into  another  co-part- 
nership, under  the  firm  of  Lewis  Summerl  &  Co.,  and  covenanted 
with  Almond  to  pay  the  note  in  question. 

"  The  defendant  alleges,  that  the  bank  to  whom  that  note  was 
given,  the  plaintiff  in  the  action,  at  the  time  of  the  dissolution  of 
the  copartnership  of  William  Almond  &  Co.,  agreed  with  the 
makers  of  this  note,  to  look  for  its  payment  to  the  firm  of  Lewis 
Summerl  &  Co.,  and  to  release  William  Almond  from  all  liability 
on  it;  and  that  this  agreement  was  a  prevailing  reason  with 
William  Almond,  for  agreeing  to  the  dissolution  of  the  firm  of 
William  Almond  &  Co. 

"  It  is  objected  by  the  plaintiff, '  that  the  facts  given  in  evidence 
are  not  proof  of  a  substitution  by  the  plaintiff,  of  the  new  firm  for 
the  old.'  It  is  the  opinion  of  the  court,  that  they  are  evidence 
r*1741  uPon  *  which  the  jury  would  be  justified  in  finding  a  ver- 
L  J  diet  for  the  defendant.  The  case  is  with  the  defendant." 


1835  ]  OF  PENNSYLVANIA.  174 

(Bank  of  Wilmington  v.  Almond. ) 

To  which  charge,  the  plaintiff's  counsel  tendered  his  bill  of  ex- 
ceptions, which  was  sealed  by  the  judge  ;  and  thereupon  prose- 
cuted this  writ  of  error. 

The  following  errors  were  assigned  : 

"1.  The  court  erred  in  charging  the  jury  that  the  facts  were 
evidence  upon  which  the  jury  would  be  justified  in  finding  a  ver- 
dict for  the  defendants. 

2.  The  court  erred  in  charging  the  jury  that  the  case  was  with 
the  defendants. 

3.  The  court  erred  in  taking  the  case  from  the  jury." 

Mr.  C.  Grilpin  and  Mr.  Sharswood  for  the  plaintiff  in  error: 

1.  A  release  to  three  continuing  members  of  an  old  firm,  who 
have  entered  into  a  new  co-partnership,  does  not  discharge  the 
withdrawing    partner.     Gow    on   Partnership,    78 ;   Clement  v. 
Brush,  (3  John  C.  C.  180 ;)  Lyman  v.  Clark,  (9  Mass.  Rep. 
235.)     The  case  of  Heath  v.  Purcival,  (1  Strange,  403,)  strongly 
resembles  this  ;  and  the  decision  is  in  point. 

2.  There  is  no  evidence  of  any  intention  to  substitute  the  new 
firm  for  the  old.     The  bank  had  a  claim  on  the  new  partnership 
for  other  notes.     The  receipt  may  be  explained  on  the  ground 
of  a  collateral  undertaking,  or  guarantee.     The  application  by 
Almond  to  open  the  judgment  in  the  court  below,  was  on  the 
technical  ground,  that  the  release  of  joint  obligor  discharges  all. 
It  is  well  settled,  that  the  acts  of  partners,  as  between  themselves, 
cannot  vary  their  liability  to  creditors.      Forrest  v.  Wain,  (4 
Yeates,  337  ;)  Whiting  v.  Farrund,  (1  Conn.  Rep.  60 ;)  Gow, 
342  ;  Collyer  on  pp.  327.     The  bank  had  no  inducement  in  this 
case  to  discharge  Almond ;  and  the  instrument  not  being  under 
seal,  it  is  defective  from  want  of  consideration.     Barker  v.  Blake, 
(11  Mass.  Rep.  16 ;)  Mortimer  v.  Caldwell,  (Kirby,  53 ;)  Smith 
v.  Rogers,  (17  John.  Rep.  341 ;)  Blew  v.  Wyatt,  (5  Carr.  &  P. 
399,  24  Eng.  C.  L.  Rep.  378;)  Latapie  v.  Pecholier,  (2  Wash. 
C.  C.  Rep.  180 ;)  Collyer,  324.     Nothing  but  satisfaction  or  a 
release  of  Almond,  can  bar  this  action. 

3.  The  court  ought  to  have  left  the  facts  to  the  jury.     Instead 
of  which,  they  took  the  facts  for  granted,  and  drew  inferences 
which  the  jury  only  were  competent  to  do.     Jones  v.  Wildes,  (8 
Serg.  &  R.  150 ;)  Bank  of  Washington  v.  Triplett,  (1  Peters' 
Rep.  (Sup.  Ct.)  25.) 

THE  COURT  declined  hearing  Mr.  Owens,  who  was  to  argue  for 
the  defendant  in  error. 

*The  opinion  of  the  court  was  delivered  by  r*1751 

GIBSON,  C.  J. — The  bank  was  not  an  original  party 


175  SUPREME  COURT  [Dec.  Term, 

(Bank  of  Wilmington  r.  Almond.) 

to  the  arrangement  between  the  members  of  the  old  firm  ;  and  it 
was  not,  therefore,  originally  bound  by  it.  But  did  it  not  become 
a  party  by  taking  a  dividend,  which  it  could  not  have  claimed, 
except  on  the  basis  of  the  arrangement  ?  The  assignment  of  the 
new  firm  transferred,  but  its  partnership  effects,  and  these,  too, 
in  trust  to  satisfy  its  own  debts ;  and  a  creditor  of  the  old  firm 
was  consequently  not  entitled,  in  that  character,  to  the  benefit  of 
the  trust.  Yet  the  bank  actually  came  in ;  and  consequently, 
as  a  creditor  of  the  new  firm,  by  its  assumption  of  the  old  debts, 
and  subject  to  the  conditions  of  the  assumption.  A  principal 
one  of  these,  as  they  appear  in  the  bond  of  indemnity,  was  pay- 
ment of  the  old  debts,  and  exoneration  of  the  retiring  partner 
by  the  new  firm.  For  the  performance  of  that,  as  well  as  every 
other  part  of  the  arrangement,  they  were  firmly  bound ;  and  it 
is  not  to  be  supposed  they  would  have  consented  to  let  the  bank 
in,  on  an  equality  with  their  proper  creditors,  and  on  terms  that 
would  have  left  them  exposed  to  an  action  by  their  former 
partner.  It  is  the  equity  of  the  new  firm,  which  comes  between 
the  defendant  and  the  bank,  and  brings  to  his  rescue  that  princi- 
ple which  forbids  the  enforcement  of  certain  agreements,  as  a 
fraud  upon  third  persons.  By  treating  the  note  as  a  debt  of  the 
new  firm,  the  bank  recognized  the  terms  of  its  assumption,  and 
agreed  to  look,  in  accordance  with  them,  to  it  only.  This  elec- 
tion to  abide  by  the  terms  of  the  assumption,  is  the  master  key 
of  the  case  ;  for,  without  it,  the  release,  which  discharged  the 
members  of  the  new  firm  from  no  more  than  its  own  debts, 
could  not  be  brought  to  bear  on  the  present  cause  of  action ; 
which  would  otherwise  not  be  a  debt,  within  the  terms  of  the 
trust.  On  the  principle  indicated,  the  debt  would  be  gone  as  to 
the  defendant,  by  force  of  the  arrangement,  without  aid  from  the 
release.  The  case  of  Heath  v.  Purcival,  (Stra.  403,)  has  been 
relied  on  for  the  contrary  ;  but  its  circumstances  show  it  to  have 
been  essentially  different.  One  of  the  two  partners,  at  the  wind- 
ing up  of  the  concern,  had  taken  on  himself  the  burthen  of  dis- 
charging the  joint  bonds  ;  and  a  bond  creditor,  having  applied  to 
him  for  payment,  received  a  promise  of  more  interest :  subse- 
quent to  which,  the  assuming  partner  became  a  bankrupt,  and 
the  obligee  having  taken  a  dividend  under  the  commission,  the 
latter  brought  a  bill  against  the  executor  of  the  other  partner, 
for  a  discovery  of  assets  and  payment  of  the  residue.  On  these 
facts,  it  was  held  that  the  agreement  was  res  inter  alias  acta  ; 
which,  as  it  could  not  prejudice  the  other  partner  who  might 
have  discharged  himself  by  payment  of  principal  and  interest 
at  the  original  rate,  ought  not  to  benefit  him.  A  better  reason 
might  perhaps  have  been  found,  in  the  fact  that  a  collateral 
agreement,  such  as  that,  was  entirely  consistent  with  a  retention 


1835.]  OF  PENNSYLVANIA.  176 

(Bank  of  Wilmington  v.  Almond. ) 

of  the  original  *debtors,  who  could  be  discharged  but  by  r*-|7fl-i 
substituting  the  promise  of  the  assuming  partner,  in  L  -  J 
place  of  the  bond.  In  our  case,  substitution  was  the  basis  of 
the  superstructure.  In  that,  the  application  to  the  assuming 
obligor,  and  consequent  agreement  for  increased  interest,  neither 
sanctioned  nor  disaffirmed  the  arrangement  between  the  partners. 
What,  then,  ;n  addition,  was  the  effect  of  taking  a  dividend 
under  the  commission,  without  reference  to  the  terms  of  the 
arrangement  ?  Certainly  not  to  discharge  the  other  obligor,  who 
had  advantage,  instead  of  prejudice,  from  it.  But  most  certainly 
the  result  would  have  been  different,  if  the  debt  had  been  made 
provable  under  the  commission,  exclusively,  by  the  arrange- 
ment and  assumption  of  the  bankrupt ;  for  being  the  consid- 
eration of  a  benefit,  the  creditor  would  have  been  bound  by  the 
conditions  of  it.  The  absence  of  that  feature  essentially  differs 
the  case  from  the  one  at  bar,  in  which  the  bank  came  in  on  the 
footing  of  a  creditor  of  the  new  firm,  exclusively,  by  virtue 
of  an  agreement  between  the  defendant  and  the  partners  of  that 
firm ;  and  it  is  bound  to  carry  out  every  part  of  the  arrange- 
ment which  made  it  so.  In  Heath  v.  Purcival,  the  debt  was  not 
discharged,  except  as  to  the  bankrupt ;  here,  if  the  note  were  so 
far  the  proper  debt  of  the  new  firm,  as  to  entitle  it  to  a  dividend 
under  the  assignment  of  that  firm,  it  was  also  its  proper  debt  so 
far  as  to  bring  it  within  the  range  of  the  release,  which,  though 
operating  directly  but  to  discharge  the  members  of  that  firm, 
and  even  these  but  from  its  partnership  debts,  operated  incident- 
ally to  discharge  the  defendant  also ;  inasmuch  as  they  would 
else  have  been  answerable  to  him  on  their  contract  of  indemnity. 
If  the  bank  might  have  recourse  to  the  defendant,  as  for  a  debt 
of  the  old  firm,  why  not  to  the  other  drawers,  who  have  been 
released  from  nothing  but  the  debt  of  the  new  firm  ?  Every  one 
would  acknowledge  the  injustice  of  that,  since  the  bank  has  been 
admitted  to  the  benefit  of  treating  the  note  as  a  debt  of  the  new 
firm ;  and  if  they  are  discharged  from  their  own  original  liability, 
the  defendant  stands  discharged,  also,  on  the  principle  which 
makes  the  release  of  one  joint  debtor,  the  release  of  all.*  In 
every  direction,  therefore,  the  course  of  the  bank  is  beset  with 
difficulties,  which  spring  from  the  obligation  of  the  bank  to  give 
full  effect  to  its  release,  in  the  only  way  it  can  do  so — by  giving 
full  effect  to  the  arrangment  which  produced  it. 

Judgment  affirmed. 

*See  8  Barr,  268 ;  10  Id.  402 ;  7  Casey,  461 ;  9  Id.  157 ;  12  Wright,  174. 


177  SUPREME  COURT  [Dec.  Term, 

[•PHILADELPHIA,  JAJTOABT  22,  1836.]  [*177] 

BROWNING  against  McMANUS. 

IN   ERROR. 

1.  Where  it  appears,  by  the  record  of  the  court  below,  that  a  case  was  re- 
ferrtud,  under  the  act  of  1705,  to  three  persons,  and  that  On  a  subsequent 
day,  one  of  them  having  declined  to  serve,  another  person  was  appointed 
hi  his  place,  it  will  be  presumed  in  the  absence  of  contradiction  by  the 
record,  that  the  substitution  was  made  with  the  consent  of  both  parties. 

2.  Exceptions  to  an  award,  under  the  act  of  1705,  arising  from  alleged  want 
of  notice  to  the  party  making  the  exception,  and  the  like,  must  be  made 
in  the  court  in  which  the  action  was  brought,  and  will  not  be  considered 
in  this  court. 

ERROR  to  the  District  Court  for  the  City  and  County  of  Phila- 
delphia, to  remove  the  record  of  an  action,  wherein  Catharine 
McManus  was  plaintiff,  and  William  Browning  was  defendant. 

It  appeared,  by  the  record  returned  in  this  case,  that  on  the 
2d  of  January,  1835,  the  case  was  referred,  under  the  act  of 
1705,  to  Messrs.  Coleman  Fisher,  Mordecai  D.  Lewis,  and  Wil- 
liam S.  Torr. 

The  next  entry  on  the  record  is  as  follows : 

"  March  6th.  Coleman  Fisher  having  declined  to  serve,  Henry 
Manly  was  appointed  referee ;  in  whose  place,  he  being  unable  to 
attend  on  account  of  indisposition,  John  Elliott  was  appointed." 

On  the  9th  of  March,  1835,  the  report  of  the  referees  was  filed, 
in  the  words  following: 

"  Two  previous  meetings  having  been  held  in  this  case,  and 
adjourned  through  the  absence  of  one  of  the  referees,  on  neither 
of  which  was  the  defendant  present  in  person,  or  by  counsel ;  the 
referees,  at  a  meeting  held  March  6th,  1835,  the  plaintiff  being 
present,  with  counsel  and  witnesses,  after  hearing  the  remarks  of 
counsel,  and  receiving  the  testimony  of  the  witnesses,  find  an 
award  in  favor  of  the  plaintiff,  in  the  sum  of  $684. 

(Signed)        MORDECAI  D.  LEWIS, 
WM.  S.  TORR, 
JOHN  ELLIOTT." 

The  following  errors  were  assigned  in  this  court: 
"1.  The  court  erred  in  substituting  referees  for  those  origin- 
ally appointed,  without  the  knowledge  or  consent  of  the  defendant 
below. 

2.  The  court  erred  in  rendering  judgment  on  the  report  of 
referees  ;  because  the  same  is  erroneous : 

l"*1781     *^'  ^n  fc^at  ^  ^oes  no^  aPPear  tna^  th®  referees  were 
ever  qualified. 


1835.]  OF  PENNSYLVANIA.  178 

(Browning  v.  McManus.) 

2.  In  that  the  proceedings,  being  ex  parte,  no  notice  to  the 
defendant  of  any  of  the  meetings  of  referees,  appears  to 
have  been  given. 

3.  In  that  the  report  is  by  referees,  of  whom  two  only  ap- 
pear to  have  been  regularly  appointed." 

Mr.  Holy,  for  the  plaintiff  in  error,  contended*: 

1.  That  the  court  below  had  no  power  to  substitute  a  referee 
for  one  who  had  declined  to   serve,  without  the  concurrence  of 
both  parties,  Shipper? »  Lessee  v.  Bush,  (1  Dall.  251 ;)  and  that 
the  consent  ought  to  appear  upon  the  record.     Russell  v.  Gray, 
(6  Serg.  &  R.  145.) 

2.  That  the  award  was  defective  ;  because  it  did  not  appear  that 
the  referees  had  been  sworn  or  affirmed.    [KENNEDY,  J. — This  is 
not  required  by  the  act  of  1705 ;  and  it  is  not  usual  in  practice.] 

3.  That  the  award  was  bad ;  because  the  proceedings  were  ex 
parte,  and  no  notice  appears  to  have  been  given  to  the  defendant 
or  his  attorney.     The  substitution  having  been  made  on  the  same 
day  that  the  meeting  of  the  referees  took  place,  notice  ought  not 
to  be  presumed. 

Mr.  Zantzinger  and  Mr.  D.  P.  Brown,  for  the  defendant  in 
error,  argued  that  the  proceedings  were  regular,  and  that,  at  all 
events,  the  remedy  of  the  party  was  by  application  to  the  court 
below.  They  cited  Kyd  on  Awards,  34  (d)  (Amer.  Ed.;)  Op- 
penheimer  v.  Comly,  (3  Serg.  &  R.  3  ;)  Nagley  v.  Stewart, 
(10  Serg.  &  R.  207.) 

PER  CURIAM.  The  exceptions  are  such  as  might  be  proper  in 
the  court  below,  on  a  motion  to  set  aside  the  award ;  which  is  put, 
by  the  act  of  1705,  on  the  footing  of  a  verdict ;  but  they  are  not 
in  place  here.  We  are  incompetent,  for  instance,  to  enquire 
whether  the  arbitrators  were  sworn,  or  the  opposite  party  had 
notice  ;  but  these,  being  extrinsic*  to  the  record,  were  open  to 
examination  in  the  court  below,  by  affidavit.  The  exception  to 
the  substitution  has  color  of  foundation,  but  no  more.  The  sub- 
stituted arbitrator  appears  to  have  been  appointed  precisely  as 
the  others  were.  The  minutes  are  unusually  short  and  unsatis- 
factory ;  but  in  a  court  of  general  jurisdiction,  every  thing  is  to 
be  presumed  in  favor  of  the  regularity  of  a  proceeding.  In  the 
absence  of  contradiction  by  the  record,  then,  we  are  to  presume 
that  the  defendant  was  present  in  person,  or  by  counsel,  and  con- 
sented to  the  substitution. 

Judgment  affirmed. 

Cited  by  Counsel,  5  Casey,  253  ;  6  Id.  388  ;  1  Grant,  118. 
Cited  by  the  Court,  2  Jones,  184  ;  14  Wright,  534. 
See  also  9  Barr,  487  ;  5  Casey,  253. 


179  SUPREME  COURT  [Dec.  Term, 

[*179]  ['PHILADELPHIA,  JANUARY  26,  1830.] 

ROBINSON  against  WOELPPER. 

IN  ERROR. 

Where  one  bequeathed  the  interest  of  a  certain  sum  to  his  wife  during  her 
life  ;  and  his  widow  afterwards  married  again  ;  it  was  held  that  the  in- 
terest so  accruing  was  not  liable  to  a  foreign  attachment,  at  the  suit  of  a 
creditor  of  the  second  husband. 

UPON  a  writ  of  error  to  the  District  Court  for  the  City  and 
County  of  Philadelphia,  the  case  was  thus: 

Rohinson  had  issued  a  foreign  attachment  against  Othniel 
Colescott ;  and  having  obtained  judgment  in  due  course,  issued  a 
scire  facias  against  George  Woelpper,  the  gamishee.  Upon  the 
trial  of  this  scire  facias,  the  jury  found  a  special  verdict,  setting 
forth  that  Frederick  Woelpper,  the  former  husband  of  Rachel 
Colescott,  now  wife  of  Othniel  Colescott,  the  defendant  in  the  at- 
tachment, made  his  will,  as  follows: 

"  Be  it  remembered,  that  I,  Frederick  Woelpper,  of  Moyamen- 
sing,  in  the  County  of  Philadelphia,  victualler,  being  of  sound 
mind  and  memory,  praised  be  the  Lord  for  the  same,  have  thought 
proper  to  make,  and  hereby  do  make,  my  last  will  and  testament, 
in  manner  following,  that  is  to  say  : 

First,  I  will  that  all  my  just  debts  and  funeral  expenses  be 
duly  paid  and  satisfied. 

1.  Item.  All  the  rest,  residue,  reversion,  and  remainder  of  my 
estate,  real  and  personal,  whatsoever  and  wheresoever,  I  give, 
devise  and  bequeath  to  my  beloved  daughter  Margaret,  and  to 
such  other  child  and  children  as  shall  be  born  unto  me,  her  and 
their  respective  heirs  and  assigns  forever,  subject,  nevertheless,  to 
the  payment  of  one-third  part  of  the  nett  interest  and  income 
thereof,  to  my  beloved  wife  Rachel,  for,  and  during  all  the  term 
of  her  natural  life  ;  which  I  give  to  my  said  wife  in  lieu  and 
bar  of  dower. 

2.  And  in  order  the  better  to  enable  my  executors  to  settle 
my  estate,  I  authorize  them  to  sell  and  dispose  of  all  my  real  es- 
tate, whenever  they  shall  deem  proper  ;  and  grant  and  convey 
the  same,  or  any  part  thereof,  to  the  purchaser  or  purchasers 
thereof,  in  fee  simple. 

And  thirdly,  I  also  give  to  my  said  wife,  Rachel,  all  the  fur- 
niture belonging  to  this  room,  and  likewise  all  my  kitchen  furni- 
ture, &c. 

Item.  I  nominate  and  appoint  my  said  wife  executrix,  and  my 
brother,  George  Woelpper,  executor  of  this,  my  last  will  and  tes- 
tament. 


1835!]  OF  PENNSYLVANIA.  180 

(Robinson  v.  Woelpper. ) 

*  And  I  also  appoint  my  said  brother  George,  guardian     ^^  Rft, 
of  the  person  and  estate  of  my  said  daughter,  and  of  such 
child  and  children  which  shall,  or  hereafter  may  be  born  unto 
me. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal  this 
twenty-first  day  of  January,  in  the  year  of  our  Lord  one  thou- 
sand eight  hundred  and  eighteen." 

That  George  Woelpper,  the  garnishee,  was  the  executor  named 
in  the  said  will,  and  as  such,  had  in  his  hands,  at  the  settlement 
of  his  accounts,  on  the  21st  of  July,  1820,  the  sum  of  $7761  64 ; 
which  was  invested  at  an  interest  of  about  five  per  cent.,  yearly, 
and  that  the  widow  of  the  testator,  and  wife  of  the  defendant,  re- 
ceived from  the  said  George  Woelpper,  half  yearly,  one-third  of 
the  interest  on  that  sum,  as  the  same  from  time  to  time  fell  due, 
viz.,  in  the  months  of  January  and  July :  and  that  since  the  issu- 
ing of  the  foreign  attachment  in  this  case,  the  sum  of  $242  17 
had  accrued  and  was  in  the  hands  of  the  garnishee,  as  executor 
of  the  said  will. 

The  court  below  rendered  judgment  upon  this  verdict  in  favor 
of  the  defendant ;  whereupon  the  plaintiff  removed  the  record  to 
this  court. 

Mr.  Wheeler,  for  the  plaintiff  in  error.  The  estate  of  the  de- 
cedent, as  respects  the  sale  of  real  estate,  and  payment  of  debts, 
had  been  settled  for  twelve  years  before  the  issuing  of  the  attach- 
ment. The  payments  of  interest  which  accrued  during  the  cover- 
ture, as  made  to  Mrs.  Colescott,  were,  in  law,  payments  to  the 
husband :  they  had  been  received,  and  were  held  to  his  use.  The 
duty  which  George  Woelpper  undertook  to  perform,  is  a  bald, 
naked,  trust ;  not  clothed  with  any  direction,  as  to  her  sole  and 
separate  use,  upon  her  own  receipt,  &c.  The  point  at  which  he 
is  to  be  contemplated,  is  when  dividends  are  received ;  immedi- 
ately on  which  receipt,  they  are  exposed  to  the  implied  assumpsit 
in  law,  which  is  in  favor  of  the  husband  alone.  In  the  case  of 
Buckley  v.  Collier,  (1  Salk.  114,)  where  the  husband  and  wife 
declared  for  work  done  by  the  wife  during  coverture  ;  the  court 
in  overruling  the  action  say — "  here  is  no  express  promise  laid  to 
the  wife  ;  here  is  nothing  but  the  promise  in  law,  and  that  must 
be  to  the  husband,  who  must  have  the  fruits  of  the  wife's  labor. 
Also,  the  advantage  of  the  wife's  work  shall  not  survive  to  the 
wife,  but  goes  to  the  husband,  for  if  the  wife  dies,  her  debts  fall 
upon  him,  and  therefore  so  shall  the  profits  of  the  trade  to  the 
husband's  executors."  So,  also,  is  the  recent  case  referred  to  in 
Clancey  on  the  Rights  of  Married  Women,  at  page  3  ;  Glover  v. 
The  Proprietors  of  Drury  Lane.  The  husband  is  entitled  abso- 
lutely to  all  sums  of  money  which  have  been  received  by  a  third 


180  SUPREME  COURT  [Dec.  Term, 

(Robinson  «.  Woelpper.) 

person  on  her  account,  during  the  marriage  ;  and  if  he  join  her 
r*ien  w^ta  h*m  *n  ^tions  f°r  such  causes,  it  *would  be  error. 
AJ  Abbott  and  Wife  v.  Blofield,  (Croke  James,  644;)  Brid- 
goodv.  Way,  (2  Black,  1236 ;)  Coke  Litt.  351,  a ;  Fitch  v.  Ayer^ 
(2  Conn.  Rep.  143,)  where  the  interest  on  a  legacy  given  to  the 
wife,  was  held  recoverable  by  the  husband  alone.  Griswold  v. 
Penniman,  (Idem.  564,)  where  the  husband's  creditors  were  held 
entitled  to  the  wife's  distributive  share,  which  accrued  during  the 
coverture.  A  legacy  given  to  a  married  woman,  must  be  paid  to 
the  husband.  Toller's  Executors,  320  ;  Matthew's  Guide  to  Exe- 
'cutors,  79.  In  Evans  and  Wife  v.  Norton's  Executors,  (4  Rawle's 
Rep.  66,)  the  expression  was,  u  I  also  give  and  bequeath  unto  the 
said  George  Knorr,  the  sum  of  one  thousand  dollars,  in  trust,  for 
the  use  of  her,  the  said  Sarah  Evans  ;"  and  it  was  held,  that  the 
husband  was  entitled  to  the  legacy.  The  reasoning  of  the  judge 
who  pronounced  the  judgment  of  the  court,  is  aside  from  the  cir- 
cumstance of  the  husband  being  joined  in  the  suit.  Yoke  v.  Bar- 
net,  (1  Binney,  358,)  contrasted  with  Jamison  v.  Brady,  (6  Serg. 
&  R.  466,)  is  a  notable  illustration  of  the  general  principle,  that 
money  accruing  during  the  coverture,  is  the  husband's ;  there, 
money  belonging  to  the  wife  was  applied  at  once  to  the  payment 
of  his  debt.  Precisely  the  same  thing  was  done  in  Krauze,  as- 
signee of  Moll  v.  Beitel,  (3  Rawle's  Rep.  199.)  This  interest 
would  be  attachable  in  Massachusetts,  for  the  husband's  debt. 
Shuttleworth  v.  Noy,  (8  Mass.  Rep.  229.)  There,  the  money 
due  on  a  promissory  note  given  to  the  wife,  was  attached  by  the 
creditor  of  the  husband.  It  matters  not  that  their  process  or 
remedies  are  different  from  ours  ;  this  circumstance  does  not 
affect  the  principle.  The  law  is  the  same  in  reference  to  the 
rents  of  the  real  estate,  accruing  during  the  coverture.  Coke 
Litt.  162,  b.  8.  "  A  feme  sole  is  seized  of  a  rent  in  fee,  &c., 
which  is  behind  and  unpaid,  she  taketh  husband :  the  rent  is  be- 
hind again ;  the  wife  dieth ;  the  husband,  by  the  common  law, 
should  not  have  the  arrearages  grown  due  before  the  marriage ; 
but  for  the  arrearages  become  due  during  the  coverture,  the  hus- 
band might  have  an  action  of  debt  by  the  common  law."  OgneVs 
case,  (4  Coke's  Rep.  61.)  So  also  is  the  year  book,  10  Henry, 
6,  11  ;  Chant,  (counsel ;)  "  in  the  case  where  the  wife,  before  the 
coverture,  had  made  a  lease  to  a  man  for  term  of  life,  rendering 
to  her  certain  rent,  and  during  the  marriage  the  rent  waa  in 
arrear,  after  the  death  of  the  wife,  the  husband  shall  not  have 
action  of  this  rent."  Babington,  J. — "  The  baron  shall  have 
good  action  in  this  case  that  you  have  put."  Rolle's  Abr. 
Baron  and  feme,  352.  To  the  same  effect  is  Torbert  v.  Twining, 
(1  Yeates,  132.)  The  case  is  clear  of  the  doctrine  connected 
with  that  of  the  wife's  choses  in  action,  because  the  right  to  these 


1835.]  OF  PENNSYLVANIA.  181 

(Robinson  v.  Woelpper. ) 

dividends,  in  the  hands  of  the  garnishee,  is  in  the  husband.  The 
law,  on  the  subject  of  the  wife's  choses  in  action,  is  to  be  found 
in  Clancey,  from  page  3  to  8.  The  dividends  received  and  em- 
braced in  the  special  verdict,  are  credits  of  the  husband,  and 
are  within  the  very  words  of  *our  attachment  law,  viz. :  r*-ioo-i 
"  goods,  chattels,  moneys,  effects,  and  credits  of  the  de- 
fendant, in  the  custody,  possession,  and  charge,  or  due  and  owing 
from  any  garnishee  or  garnishees."  (2  Sm.  L.  502.)  The  object 
of  the  foreign  attachment  law,  is  to  make  responsible  the  effects 
of  the  absent  debtor,  to  the  same  extent  as  those  of  the  present 
debtor.  If  Colescott  should  be  compelled  to  take  the  benefit  of 
our  insolvent  law,-  his  assignmant  would  embrace  these  credits. 
(Ingraham  on  Insolvency,  2d  ed.  223,  321.)  .  The  attachment 
may  be  dissolved  by  the  entering  of  special  bail.  (1  Smith's  L. 
45,  s.  2.)  This  case  is  different  from  that  in  2  Watts.  Rep.  90, 
Dennison  v.  Nigh;  because  the  estate  there  is  not  settled.  A 
trust  for  selling  real  estate  was  to  be  executed.  The  cases  cited 
by  the  court,  in  ruling  the  point,  are  not  applicable  to  our  case : 
the  one  in  2  Ventris,  341,  was  clearly  a  case  of  a  wife's  chose  in 
action :  that  in  1  Rolle's  Abr.  551,  was  not  an  interest  coming 
up  to  the  point  of  assignability,  according  to  Sommer  v.  Wilt, 
(4  Serg.  &  R.  19.)  It  was  an  attempt  to  attach  the  interest  of 
a  dispossessed  owner  of  goods,  in  the  hands  of  a  tort  feasor.  As 
to  reduction  into  possession.  The  dividends,  as  received,  had 
always  been  punctually  paid  to  Mrs.  Colescott,  before  her  mar- 
riage, and  after  that  event,  till  the  time  of  the  attachment,  in  a 
way  satisfactory  to  the  husband.  There  was  as  much  reduction 
into  possession  as  the  nature  of  the  thing  admitted  of.  We  are 
to  be  governed  by  our  acts  of  assembly,  and  not  by  the  customs 
of  London.  By  the  custom  of  London,  it  appears  that  a  legacy 
is  not  the  subject  of  foreign  attachment ;  whilst  this  court  holds  it 
to  be  an  open  question  under  our  law. 

Mr.  Arundel,  contra,  cited  Schuyler  v.  Hoyt,  (5  Johns.  Ch. 
Rep.  190 ;)  Jamison  v.  Brady,  (6  Serg.  &  R.  466 ;)  Lodye  v. 
Hamilton,  (2  Serg.  &  R.  491 ;)  Starret  v.  Wynn,  (17  Serg.  & 
R.  130 ;)  Dennison  v.  Nigh,  (2  Watts,  90 ;)  3  Atkyns,  399 ; 
5  Vesey,  520 ;  3  Br.  Ch.  Rep.  181 ;  1  Russell  Ch.  Rep.  24  ; 
1  Bac.  Abr.  480 ;  2  Atkyns,  206  ;  2  Vernon,  202  ;  Clancey, 
321,  353. 

The  opinion  of  the  court  was  delivered  by 

HUSTON,  J. — There  is  scarcely  any  part  of  the  law,  in  which 
the  distinctions  have  gone  on  nicer  grounds,  than  in  that  which 
relates  to  the  rights  of  husband  and  wife.  Nay,  the  decisions  are 
not  always  to  be  reconciled ;  and  in  more  than  one  instance,  what 


182  SUPREME  COURT  [Dec.  Term, 

(Robinson  V.  Woelpper.) 

was  held  to  be  law  at  one  time,  has  been  subsequently  expressly 
overruled.     I  shall  confine  ray  remarks  to  the  case  before  us. 

The  cases  cited  do  not,  all  of  them,  apply  to  the  case  before 
us.  This  is  not  the  case  of  money  earned  by  the  labor  of  the 
wife,  and  sued  for  on  the  implied  promise  to  pay ;  nor  is  it  the 
case  of  money  or  goods  devised  to  a  married  woman,  or  of  a  bond 
or  note  given  to  a  married  woman — it  is  a  legacy  devised  to  a 
r*1K3T  woman  before  *she  was  married.  I  may  admit  that  the 
J  husband  could  sue  for  it  alone — could  release  it — assign 
it ;  that  it  would  go  to  the  assignees  of  her  husband,  if  a 
bankrupt,  or  insolvent  debtor.*  Here  he  has  not  sued  for  it, 
nor  released,  nor  assigned  it,  nor  been  declared  a  bankrupt, 
nor  assigned  and  been  discharged  under  the  insolvent  debtors' 
act. 

The  position,  that  if  a  husband  can  sue  for  it  alone,  and  re- 
cover, it  is  his,  and  goes  to  his  executors,  and  does  not  survive, 
is  not  admissible.  He  may  assign  a  term  for  years — bring  eject- 
ment, and  recover  it  in  his  own  name.  It  may  in  his  lifetime 
be  taken  on  execution  for  his  debt ;  and  yet  every  book  says, 
that  if  he  does  not  assign  it — does  not  bring  an  ejectment  for  it, 
in  his  own  name,  but  leaves  it  not  sued  for,  or  joins  his  wife  with 
him,  as  plaintiff,  in  the  ejectment,  or  it  is  not  taken  in  execution 
for  his  debts,  during  his  life,  it  survives  to  the  wife  ;  and  he 
cannot  prevent  this,  by  devising  it ;  though  he  could  have  sold 
or  assigned  it  till  the  last  moment  of  his  life.  In  England, 
legacies  are  recoverable  generally  in  chancery,  and  this  has  in- 
troduced a  part  of  their  law,  as  to  husband  making  provision  for 
his  wife,  where  the  gift  is  to  her,  before  he  can  recover  the 
bequest ;  and  on  this  subject,  also,  all  the  decisions  are  not 
easily  reconciled.  We  may  say  that,  generally,  where  he  has 
made  a  settlement  on  her  at  the  marriage,  he  gets  legacies, 
claiming  as  a  purchaser,  without  any  new  settlement  on  recover- 
ing the  legacy.  But  this  is  not  universally  so.  For  where  the 
sum  settled  at  the  marriage  is  small,  and  the  legacy  large,  he 
has  been  compelled  to  settle  a  further  sum.  In  this  case,  the 
husband  has  made  no  settlement ;  and  his  creditors  can't  claim 
on  that  account.  But  this  chancery  power  has  not  been  exer- 
cised in  this  state.  It  would  seem,  then,  that  although  the  right 
of  the  husband  is  in  many  cases  absolute,  yet,  if  he  does  not 
exercise  the  right,  it  expires  with  his  life.  He  is  entitled  to  the 
property,  to  the  term  for  years,  the  chose  in  action  or  legacy  ; 
but  he  is  entitled  to  it,  and  owns  it,  in  right  of  his  wife  ;  and 
when  he  dies  without  having  exercised  his  right,  her  right  is 
superior  to,  and  exclusive  of  all  others.  Husband  and  wife  are, 

*  See  7  Watts  &  Sergeant,  169  ;  1  Harris,  563. 


1835.]  OF  PENNSYLVANIA.  183 

(Robinson  v.  Woelpper.) 

in  law,  but  one  person.  All  rights  to  personal  property  which 
were  in  her,  by  this  legal  fiction,  are  in  him,  as  identified  with 
her,  during  his  life  ;  and  though  he,  having  the  power  to  sue  or 
dispose,  may  recover,  and  reduce  to  possession  or  dispose  of  the 
chose  in  action  without  her,  yet  the  right  still  remains  in  her  so 
far,  that  if  she  survives,  she  has  it  precisely  as  she  had  it  before 
marriage. 

The  act  of  the  husband  only,  can  divest  this  right  of  the  wife. 
A  creditor  can  imprison  a  man  if  he  does  not  pay  his  debts,  and 
has  no  property  on  which  to  levy  it.  But,  although  in  prison, 
the  creditor  cannot  compel  him  to  assign  his  own  bonds,  given 
directly  to  himself;  nor  the  bonds  or  legacies  given  to  his  wife 
before  her  marriage :  and  I  think  no  case  or  dictum  can  be  found 
to  show,  *that  during  his  life,  or  after  his  death,  the  \-*-\QA-\ 
bond  or  legacy  to  the  wife,  before  marriage,  can  be  "- 
taken  for  his  debt.  If  he  wishes  to  be  discharged  from  prison 
under  acts  for  relief  of  insolvent  debtors,  he  must  assign  them ; 
and  then,  it  is  the  act  of  assigning,  which  passes  them  to  the 
creditors.  The  fact  of  his  being  indebted,  and  no  other  fund  to 
pay  creditors,  will  not  pass  them.  The  law  seems  to  require 
some  act  of  the  husband,  to  take  them  from  the  wife.  If  no  act 
is  done  by  the  husband,  the  chose  in  action,  which  was  the  wife's 
before  marriage,  must  be  hers  after  his  death.  In  this  case,  the 
husband  has  done  no  act ;  has  not  sold,  released,  or  assigned — 
either  voluntarily  or  as  a  bankrupt.  The  result  of  this  may  be, 
that  a  husband  may  have  a  right  to  money  which  he  could  get, 
but  which  his  creditors  cannot  reach.  So  a  bond  may  be  due  to 
him,  or  a  debt ;  his  creditors  cannot  levy  on  either  of  these  ;  and 
if  he  will  lie  in  jail,  they  cannot  obtain  them  during  his  life.  A 
bond  to  himself,  or  a  debt  to  himself,  may,  after  his  death,  be 
reached  by  his  creditors  ;  but  a  legacy  or  debt  to  the  wife,  before 
her  marriage,  if  not  collected  by  the  husband,  his  creditors  can- 
not obtain:  for,  as  it  was  originally  in  the  wife,  and  the  husband's 
right  arose  from  the  fiction  of  the  law,  which,  for  many  purposes, 
considers  husband  and  wife  but  one  person,  the  law  remits  to  the 
wife  her  original  right  on  the  death  of  the  husband  ;  and  neither 
heirs  nor  creditors  of  the  deceased  husband  have  any  right 
to  it.  The  very  point  now  before  us,  was  decided  by  this  court, 
in  2  Watts.  90  ;  for  this  yearly  sum  is  the  legacy.  The  be- 
quest is  not  of  the  principal  to  the  wife,  and  the  interest  annu- 
ally. If  it  were  so,  I  am  not  aware  that  it  would  make  any  dif- 
ference. If  a  bond  is  due  to  a  woman  before  marriage,  and 
neither  principal  nor  interest  disposed  of  by  the  husband  during 
life,  the  whole,  on  his  death,  goes  to  his  wife.  So  of  a  legacy 
bearing  interest. 

Whether  any  legacy  can  be  attached    for   the   debt  of  the 


184  SUPREME  COURT.  [Dec.  Term, 

(Richards  «.  Murphy.) 

legatee,*  has  not  yet  been  decided  in  this  state,  and  we  say  noth- 
ing about  it. 

Judgment  affirmed. 

Cited  by  the  Court  below,  12  Casey,  178. 

Cited  by  Counsel,  3  Wharton,  417  ;  8  Watts,  11 ;  7  Watts  &  Sergeant, 
418 ;  1  Barr,  293 ;  4  Id.  391 ;  9  Id.  502  ;  10  Id.  423,  433  ;  4  Harris,  392. 

Cited  by  the  Court,  6  Watts  &  Sergeant,  299 :  5  Barr,  263  ;  9  Wright, 
528. 

See  also,  2  Barr,  72  ;  6  Penn.  Law.  Jour.  97  ;  9  Harris,  250 ;  11  Id.  463. 


[*185]  ['PHILADELPHIA,    JANUARY    26,     1863.] 

RICHARDS  and  Others  against  MURPHY. 

IN  ERROR. 

In  trover  against  one  who  had  purchased  goods  from  a  person  alleging 
himself  to  be  the  owner,  declarations  by  an  agent  of  the  plaintiff,  made 
at  the  time  of  the  purchase  by  the  defendant,  disclaiming  title  in  the 
plaintiff,  were  held  to  be  admissible  in  evidence  on  the  part  of  the  de- 
fendant. 

ERROR  to  the  District  Court  for  the  City  and  County  of  Phila- 
delphia. 

An  action  of  trover  was  brought  to  September  term,  1882,  of 
the  District  Court,  by  Mark  Richards,  John  Hemphill,  George 
M'Clelland,  and  Tobias  Huber,  against  James  Murphy,  to  re- 
cover the  value  of  certain  pieces  of  lumber,  alleged  to  be  the 
property  of  the  plaintiffs,  and  to  have  been  converted  by  the  de- 
fendant. 

It  appeared,  upon  the  trial,  that  the  plaintiffs  were  concerned 
together  in  the  business  of  planing  boards  by  steam  power,  and 
received  lumber  for  that  purpose  :  that  a  quantity  of  lumber  was 
landed  upon  the  wharf  of  Davis  &  Biddle,  on  the  river  Schuyl- 
kill,  at  the  request  of  one  Inslee,  for  the  purpose  of  being  carted 
thence  to  the  lumber  yard  of  the  plaintiffs,  upon  a  contract  made 
by  Inslee  on  their  behalf,  for  the  purchase  of  it  from  the  con- 
signees. It  was  not,  however,  taken  away  from  the  wharf ;  the 
plaintiffs  refusing  to  ratify  the  contract ;  but,  while  there,  part 
of  it  was  sold  to  the  defendant  by  one  Trimmels,  who  alleged 
himself  to  be  the  agent  of  the  consignors,  and  to  whom  the  de- 
fendant paid  the  price  agreed  upon  between  them.  It  appeared, 
also,  that  the  consignors  of  the  lumber  had  recovered  the  value 

*  See  2  Wharton,  332. 


1835.]  OF  PENNSYLVANIA.  185 

(Richards  «.  Murphy.) 

against  the  present  plaintiffs,  in  an  action  on  the  contract.  The 
plaintiff  having  proved  the  possession  of  the  lumber  by  the  defend- 
ant, and  that  the  property  was  in  the  plaintiff,  by  reason  of  the 
recovery  of  the  price  or  value  of  it  from  them  by  the  owner ;  the 
defendant  offered  in  evidence  declarations  of  Inslee,  made  after 
the  landing  of  the  lumber  on  the  wharf,  and  before  the  purchase 
by  the  defendant — that  the  lumber  did  not  belong  to  the  plaintiffs. 
It  was  shown  that  Inslee  was  employed  in  the  lumber  yard  of  the 
plaintiffs,  and  had  charge  of  their  planing  machine.  The  plain- 
tiffs' counsel  objected  to  the  admission  of  Inslee's  declarations; 
but  the  judge  admitted  them,  and  the  evidence  having  been  gone 
through,  charged  the  jury  in  .substance  as  follows: 

"  There  being  no  dispute  about  the  value  of  the  lumber,  the  case 
depends  upon  a  few  plain  principles.  The  only  person  known  in 
the  business,  on  the  part  of  the  plaintiffs,  was  Mr.  Inslee,  who  had 
applied  *  to  Davis  &  Biddle  for  permission  to  land  the  r-^  ^-, 
lumber,  and  throughout  acted  for  the  plaintiffs,  who 
must  take  his  acts  throughout.  Unless  somebody  else  is  answer- 
able, one  or  other  of  these  parties  must  lose  their  money.  It  ap- 
pears that  Inslee,  after  having  been  repeatedly  sent  to  by  Davis 
&  Biddle,  declared  that  the  concern  had  nothing  to  do  with  this 
lumber,  and  would  not  receive  it,  and  left  Davis  &  Biddle  to  take 
their  own  course  with  regard  to  it ;  and  in  consequence  of  that, 
as  a  point  of  law,  any  person  purchasing  for,  or  with  the  knowl- 
edge and  approbation  of  Davis  &  Biddle,  had  a  right  to  take  the 
property ;  and  if  Davis  &  Biddle  chose  to  sell  or  allow  a  sale,  by 
a  person  they  honestly  believed  had  a  right  to  sell,  after  Inslee 
had  disclaimed  the  ownership,  the  purchaser  may  hold  the  prop- 
erty, and  the  plaintiff  may  look  to  Davis  &  Biddle,  or  to  the 
person  actually  selling,  if  they  have  any  claim.  But  as  a  point 
of  law,  Murphy  is  protected,  having  purchased  with  the  knowl- 
edge and  approbation  of  Davis  &  Biddle.  Murphy  used  due  pre- 
caution, received  the  lumber  from  a  responsible  house,  and  he  is 
protected.  If  he  is  responsible,  then  every  one  who  has  a  piece 
of  this  wood  in  a  bureau  may  also  be  made  responsible,  and  may 
be  sued  on  the  same  principle.  There  must  be  some  limit  to  a 
man's  following  his  property." 

The  plaintiff's  counsel  excepted  to  the  admission  of  Inslee's 
declarations,  and  to  the  charge  of  the  court ;  and,  having  removed 
the  record  to  this  court,  assigned  the  following  errors : 

"1.  The  judge  who  tried  the  cause,  permitted  the  declarations 
of  John  Inslee  to  be  given  in  evidence  to  the  jury  to  affect  the 
rights  of  the  plaintiffs,  the  said  Inslee  being  no  party  to  the  re- 
cord, and  no  authority  shown  to  bind  the  plaintiffs  by  his  declara- 
tions— the  said  evidence  being  objected  to  by  the  counsel  for  the 
plaintiffs. 


186  SUPREME  COURT  [Dec.  Term, 

(Henry  v.  Sims.) 

2.  The  judge  charged  the  jury,  that  there  being  no  dispute  as 
to  the  value  of  certain  lumber  which  was  the  subject  in  contro- 
versy, and  the  said  Inslee  having  applied  to  land  the  said  lumber, 
and  being  the  only  person  known  in  the  business  on  the  part  of 
the  plaintiffs,  his  declarations  and  acts  bound  them  throughout. 

3.  The  judge  charged  the  jury,  that  the  plaintiffs  were  pre- 
vented from  recovering  by  the  declarations  of  Inslee,  that  the  lum- 
ber in  question  did  not  belong  to  the  concern,  and  that  they  would 
have  nothing  to  do  with  it.     That  the  owners  of  the  wharf  might 
sell  it,  or  do  as  they  pleased  with  it. 

4.  The  judge  further  charged  the  jury,  that  any  person  buy- 
ing the  said  lumber,  with  the  knowledge  and  consent  of  the  own- 
ers of  the  wharf,  after  the  said  declarations,  would  have  a  right  to 
hold  it." 

Mr.  CJtew,  for  the  plaintiff  in  error,  cited  Hosack  v.  Weaver, 
(1  Yeates,  478 ;)  Easton  v.  WortUngton,  (5  Serg.  &  R.  130.) 

r*ifiri         *Mr.  Hirst,  contra,  cited  Shelhamer  v.  Thomas,  (1 
Serg.  &  R.  106.) 

PER  CURIAM. — A  disclaimer  of  title  by  the  plaintiff  in  person, 
when  the  defendant  bought,  would  have  concluded  him ;  whether 
it  were  made  in  fraud  or  in  ignorance  ;  for  every  man  is  bound  to 
bear  the  consequences  of  his  own  mistakes.  The  matter,  then, 
was,  whether  Inslee,  who  appears  to  have  had  some  sort  of 
agency  under  the  plaintiff,  had  power  to  represent  him  on  the 
occasion ;  and  that  presented  a  question  for  the  jury.  There 
was  at  least  some  evidence  to  raise  it ;  and  as  error  is  not  to  be 
presumed,  we  are  bound  to  say  the  assignment  of  it  has  not  been 
sustained. 

Judgment  affirmed. 

Cited  by  Counsel,  2  Wharton,  203,  343. 


[PHILADELPHIA,  JANUARY  30,  1836.] 
HENRY  against  SIMS. 

IN    ERROR. 

1.  A  judgment  in  a  scire  faews  upon  a  mortgage,  for  the  amount  of  the 
money  due  upon  the  mortgage,  is  a  judgment  for  a  "debt  or  damages," 
within  the  14th  section  of  the  act  of  13th  April,  1791 ;  which  provides 


1835.]  OF  PENNSYLVANIA.  187 

Henry  v.  Sims. ) 

for  entering  satisfaction  of  such  judgment,  and  gives  a  penalty  to  the 
party  aggrieved  by  the  refusal  to  enter  satisfaction. 

2.  It  is  not  necessary  that  the  party  suing  for  such  penalty  should  prove 
that  he  has  sustained  actual  damage  by  the  refusal  to  enter  satisfaction ; 
The  jury  may  take  into  consideration  all  the  circumstances  by  which  the 
party  has  suffered  vexation  and  inconvenience. 

THIS  was  a  writ  of  error  to  the  District  Court  for  the  city  and 
county  of  Philadelphia,  to  remove  the  record  of  an  action  of  debt, 
brought  in  that  court  by  Joseph  Sims  against  Alexander  Henry, 
to  recover  the  penalty  given  by  the  14th  section  of  the  act  of 
13th  April,  1791,  for  not  entering  satisfaction  of  a  judgment  in 
the  said  court. 

The  circumstances  were  as  follows : 

On  the  23d  of  December,  1820,  Joseph  Sims  executed  a  mort- 
gage of  certain  property  in  the  county  of  Philadelphia,  to  Alex- 
ander Henry,  to  secure  the  payment  of  $10,000  with  interest, 
money  lent  by  Alexander  Henry  to  Joseph  Sims. 

In  the  spring  of  the  year  1823,  Joseph  Sims,  being  then  insol- 
vent, executed  an  assignment  of  all  his  property  for  the  benefit 
of  his  creditors  ;  *  where  by  all  his  interest,  in  the  pre-     r*iQQ-i 
mises  mortgaged  to  Alexander  Henry,  passed  to  his     ^ 
assignees. 

The  interest  on  the  mortgage  being  no  longer  paid,  Alexander 
Henry  issued  a  scire  facias  thereon,  to  the  June  Term  of  the 
said  court ;  whereupon  judgment  was  entered  by  agreement,  on 
the  23d  day  of  June,  in  the  same  year,  in  favor  of  the  plaintiff, 
for  $10,600,  the  amount  of  the  mortgage  with  one  year's  interest 
thereon.  On  this  judgment  execution  was  issued  and  satisfaction 
obtained. 

In  the  month  of  March,  1828,  Caleb  Carmalt,  as  the  agent  of 
Joseph  Sims,  applied  to  Alexander  Henry  to  enter  satisfaction  on 
the  record  of  the  said  judgment,  which  not  being  done  within 
eighty  days,  Joseph  Sims  brought  this  action,  and  claimed 
$5,300,  one  half  the  amount  of  the  said  judgment,  as  a  penalty 
for  not  entering  satisfaction  thereon,  within  eighty  days  after  the 
request  so  to  do. 

Issue  being  joined  upon  the  plea  of  nil  debit,  &c.  the  cause 
came  on  for  trial  in  the  District  Court,  on  the  10th  of  May,  1833, 
when  the  plaintiff  gave  in  evidence  the  following  entries  on  the 
docket  of  the  same  court  of  June  Term,  1823,  viz. : 

"ALEXANDER  HENRY,  "j 

348  v.  Scire  facias  sur 

JOSEPH  SIMS,  with  notice  to  Joseph  B.  Sims,  I        Mortgage. 
Benjamin  Jones  and  Joseph  Johnson,  his       "  made  known." 
assignees  and  terre  tenants. 
23d  June,  1823.     By  writing  filed,  it  is  agreed,  that  judgment 

VOL.  I. — 13 


188  SUPREME  COURT  [Dec.  Term, 

(Henry  c.  Sims.) 

be  entered  in  favor  of  the  plaintiff,  for  ten  thousand  six  hundred 
dollars,  to  be  entered  on  the  22d  June,  1823,  as  on  an  award  of 
arbitrators  regularly  obtained  and  filed  on  that  day. 
June  23d,  1823.     Judgment. 
27th  August,  1828.     This  judgment  is  satisfied. 

Signed,  ALEXANDER  HENRY." 

The  plaintiff  then  read  the  deposition  and  cross-examination  of 
Caleb  Carmalt,  as  follows :  "  Caleb  Carmalt,  a  witness  on  behalf 
of  the  plaintiff,  aged  thirty-seven  years  and  upwards,  being  duly 
affirmed,  says :  In  the  beginning  or  middle  of  February, 
1828,  I  was  applied  to  by  the  plaintiff  in  the  above  case,  to 
obtain  for  him  about  eight  thousand  dollars  upon  mortgage  of 
lands  in  Philadelphia  county.-  I  made  application  to  Thomas 
Voight,  and  obtained  a  promise  from  him  to  let  Mr.  Sims  have 
four  thousand  dollars,  upon  the  office  certificates  proving  satis- 
factory. I  made  the  usual  application  to  the  different  offices  for 
certificates,  and  upon  obtaining  them,  there  appeared  upon  that 
from  the  District  Court,  a  judgment  obtained  by  Alexander 
Henry  against  Joseph  Sims,  for  ten  thousand  six  hundred  dol- 
lars. I  showed  the  certificates  to  Joseph  Sims,  the  defendant 
in  that  action  and  plaintiff  in  this,  who  told  me  it  was  paid,  and 
thought  there  must  be  some  mistake,  and  that  satisfaction  was 
surely  entered.  He  sent  me  to  his  assignees  for  evidence  of 
r*18Ql  *  payment,  and  I  got  from  Mr.  B.  Jones  a  statement  to 
-•  that  effect.  I  then  stated  the  circumstances  to  Voight, 
but  he  refused  to  lend  the  money,  alleging  that  both  Mr.  Jones 
and  Mr.  Sims  were  to  be  considered  as  defendants,  and  he  wanted 
something  from  the  plaintiff,  Alexander  Henry.  I  then  went 
with  the  certificate  in  my  hand  to  Alexander  Henry's  counting- 
house,  and  exhibiting  the  certificate  and  the  statement  of  Mr. 
Jones,  I  stated  the  difficulties  which  had  taken  place  in  obtaining 
the  loan  and  the  impossibility  of  getting  the  money.  He  read 
the  certificate,  and  he  then  said,  that  the  statement  of  debt,  in- 
terest, and  costs,  having  been  paid,  was  all  perfectly  correct ;  that 
he  did  not  know  why  it  was  not  entered  :  that  the  whole  business 
was  committed  to  the  care  of  his  counsel,  William  H.  Tod,  and 
that  he  (W.  H.  T.)  must  still  attend  to  do  what  was  necessary. 
I  told  him,  that  my  object  was  to  get  satisfaction  now,  and  that 
it  would  take  him  but  a  few  minutes  to  go  round  to  the  office  and 
enter  satisfaction,  if  he  knew  the  facts  to  be  as  represented,  that 
the  debt,  interest,  and  costs  were  paid.  He  said  he  knew  the 
business  was  all  settled,  but  he  would  not  meddle  with  it  himself; 
I  must  go  to  Mr.  Tod.  I  think  there  was  a  conversation  took 
place  on  the  subject  of  the  satisfaction  fee,  in  which  I  told  him  if 
it  was  not  paid,  I  would  pay  it.  Of  this,  however,  I  am  not  so 


1835.]  OF  PENNSYLVANIA.  189 

(Henry  v.  Sims.) 

certain  as  of  the  other  parts  of  my  deposition.  I  represented  to 
him  the  circumstances  in  which  Mr.  Sims  was  then  placed,  in  re- 
gard to  his  assignees,  telling  him  there  was  a  balance  which  the 
assignees  insisted  upon  having,  before  they  would  execute  a  re- 
assignment. After  considerable  further  effort  with  Alexander 
Henry,  I  went  to  W.  H.  Tod,  and  stated  what  had  taken  place, 
and  that  I  had  been  sent  to  him  by  Alexander  Henry,  and  made 
the  same  representation  to  him  and  wished  him  to  do  what  was 
requisite  in  that  case.  He  said  Mr.  Henry  must  enter  satisfac- 
tion ;  took  down  his  docket  or  receipt  book  and  showed  me  that 
not  only  was  the  judgment  paid,  but  that  he  had  also  paid  it  over 
to  Alexander  Henry.  He  then  told  me  to  go  to  Henry  and  tell 
him  to  enter  satisfacfton.  I  went  back  the  same  day  to  Voight, 
and  stated  their  representations  to  him,  but  he  positively  refused 
to  let  Joseph  Sims  have  the  money.  He  said,  he  thought  they 
could  have  no  difficulty  in  entering  satisfaction,  if  it  was  as  it  was 
represented.  The  next  day,  I  think,  I  took  Voight  with  me  to 
the  prothonotary's  office,  and  showed  him  that  it  was  a  judgment 
on  a  scire  facias.  He  was  still  uneasy  and  unwilling  ;  and  said 
he  could  not  understand  why  they  would  not  enter  satisfaction. 
I  then  went  again  to  Alexander  Henry's  counting-house  and 
missed  seeing  him,  but  saw  his  clerk,  who  took  down  the  ledger, 
and  showed  me  that  the  account  was  balanced.  I  went  a  third 
time  to  Alexander  Henry.  I  saw  him,  and  the  same  kind  of 
conversation  took  place  as  before.  I  also  told  him  what  W.  H. 
Tod  said,  and  what  Voight  said.  Alexander  Henry  said  in  reply, 
that  he  would  not  have  any  thing  to  do  with  it,  and  that  Mr.  Tod 
must  do  it  himself.  *  I  then  left  the  counting-house  and  r*i  QQ-J 
have  never  seen  him  since  upon  that  subject.  With  very 
great  difficulty,  I  at  length  finally  succeeded  in  getting  the 
money." 

On  his  cross-examination  the  witness  said : 
"  That  at  his  first  interview  with  Alexander  Henry,  as  stated 
in  his  deposition  in'  chief,  he  thinks  George  Williams  was  in  the 
counting-house  of  Alexander  Henry.  He  speaks  with  confidence 
when  he  says  so.  He  sat  reading  a  newspaper.  He  does  not 
recollect  any  other  person  then  to  have  been  present  with  Mr. 
Henry,  but  his  clerk.  It  was  the  same  man  who  afterwards  took 
down  the  ledger  and  showed  the  deponent  Mr.  Sims'  account,  as 
stated  above.  He  is  under  the  impression,  that  on  his  interview 
with  Mr.  William  H.  Tod,  Mr.  Tod  stated  that  John  Wharton 
was  the  purchaser,  but  cannot  say  what  reasons  he  gave  for  not 
having  entered  satisfaction.  On  the  deponent's  second  interview 
with  Mr.  Henry,  he  did  not  state  what  W.  H.  Tod  assigned  as 
his  reason  for  not  entering  satisfaction  on  the  docket  of  .the  judg- 
ment in  the  case  of  Henry  v.  Sims.  At  the  second  interview 


190  SUPREME  COURT  [Dec.  Term, 

(Henry  t>.  Sims.) 

with  Mr.  Henry,  the  deponent  does  not  believe  that  there  was 
any  body  there  but  Mr.  Henry.  He  is  under  the  impression  that 
at  the  first  interview,  there  waa  another  person  passing  in  and 
out  of  Mr.  Henry's  counting-house,  but  cannot  speak  positively. 
But  at  the  second,  he  does  not  think  there  was  any  person  passed 
in  or  out  of  the  counting-house.  The  deponent  cannot  say 
whether  Mr.  Tod  did  or  did  not  certify  on  the  face  of  the  certifi- 
cate of  judgments,  that  the  one  in  question  was  satisfied.  But 
the  certificate  is  in  the  hands  of  Mr.  Voight.  The  deponent  does 
not  know  that  Mr.  Sims  sustained  any  actual  loss  from  the  cir- 
cumstances he  has  detailed  in  evidence,  and  Mr.  Henry's  declin- 
ing to  enter  satisfaction  on  the  record  of  the  judgment,  but  a 
little  delay,  as  the  deponent  afterwards  procured  the  money  from 
Mr.  Voight,  without  any  alteration  of  the  circumstances  of  the 
case." 

The  delay,  the  deponent  should  think,  was  hardly  a  week.  He 
thinks  he  told  Mr.  Tod,  that  Mr.  Henry  said,  that  he,  W.  H. 
Tod,  should  enter  satisfaction,  but  he  never  went  but  once  to  W. 
H.  Tod's  office  on  the  subject.  The  mortgage  on  which  the  judg- 
ment was  entered,  was  satisfied  on  the  record  at  the  recorder's 
office  ;  but  the  judgment  thereon  in  the  prothonotary's  office  was 
not  satisfied  on  record.  The  deponent  is  positive,  that  he  never 
tendered  to  Mr.  Henry  any  money  for  the  fee  for  entering  satis- 
faction." 

The  plaintiff  then  read  a  certificate  from  the  prothonotary  of 
the  Court  of  Common  Pleas  for  the  county  of  Philadelphia,  cer- 
tifying that  he  found  no  unsatisfied  judgment  against  Joseph 
Sims  ;  which  was  dated  21st  February,  1828,  also  a  certificate 
from  the  prothonotary  of  the  District  Court,  for  the  city  and 
county  of  Philadelphia,  in  which  he  certified  that  on  examination 
of  the  judgment  docket  of  the  said  court,  from  December  Term, 
r*1Q1T  one  *inousand  eight  hundred  *and  twenty-two,  to  the 
J  nineteenth  day  of  February,  one  thousand  eight  hundred 
and  twenty-eight,  he  found  the  following  judgments  entered 
within  that  period  against  Joseph  Sims. 

"  Alexander  Henry  v.  Jos.  Sims,  J.  23.  348  Tob.-^June  23, 

1823,  $10,000. 

Philadelphia  Bank  v.  Same,  J.  24.  444.  J.  M.  Read.-^June  10, 

1824,  $2,359  63. 

Also  find  two  against  Joseph  B.  Sims. 

Joseph  Johnston  v.  Jos.  Sims,  J.  29.  448.  J.  S.  Smith. — July  1, 

1829,  $6,261  91. 

Jno.  Coulter,  v.  Same,  M.  28.  300.  Cadwalader.— Sept.  8,  1830, 
from  the  above  date  to  the  17th  December,  1830, 

50-100  paid,  S.  M.  S.  Certified  pro  prothonotary. 

SAM  M.  SOLOMON. 


1835.]  OF  PENNSYLVANIA.  191 

(Henry  «.  Sims.) 

The  judgment  above  stated  by  Jos.  Johnston  v.  Jos.  Sims,  is 
satisfied. 

Bed.  18, 1830.  JAMES  S.  SMITH." 

On  the  back  of  which  certificate  was  written  as  follows : 
"  The  mortgage  on  which  the  last  judgment  was  obtained  is  sat- 
isfied. Signed, 
Feb.  21, 1828.  CALEB  CARMALT." 

Also, 

"  Alexander  Henry  sued  out  his  mortgage — obtained  the  within 
judgment  thereon — and  the  whole  amount,  debt,  interest,  and 
costs  have  been  paid.  Signed,  B.  JONES." 

Also, 

"  The  judgment  being  on  a  scire  facias,  is  not  a  lien  upon  the 
remaining  land  of  Joseph  Sims — Alexander  Henry  told  me  this 
day  it  was  all  paid. 

Signed, 

2d  Mo.  22,  1828.  CALEB  CARMALT." 

Also, 

"M.  28.  300 — Sims  v.  Coulter,  is  a  judgment  for  costs  only. 

Signed, 
Dec.  18, 1830.  JOHN  CADWALADER,  for  Def." 

He  also  offered  in  evidence  a  certificate  from  the  prothonotary 
of  the  Supreme  Court,  certifying  that  on  examining  the  judgment 
docket  of  the  Supreme  Court  for  the  Eastern  district  of  Pennsyl- 
vania for  five  years  prior  to  the  eighteenth  day  of  February,  A, 
D.  1828,  he  found  the  following  unsatisfied  judgments  against 
Joseph  Sims. 

"  Hannah  Chancellor  v.  Joseph  Sims — Warrant  of  Attorney, 
94,  pp.  28.  same  1823. 

Judgment  for  $1:0,000." 
*on  the  back  of  which  was  endorsed,  ["*1921 

"  The  mortgage  accompanying  the  within  judgment  is 
satisfied.  Signed, 

Feb.  21, 1828.  CALEB  CARMALT." 

The  plaintiff  then  .offered  in  evidence  the  docket   of  sheriff 
Douglas,  for  June  Term,  1824,  he  then  being  sheriff  of  the  city 
and  county  of  Philadelphia,  where  appeared  the  following  en- 
tries:— 
"  Alexander  Henry, 


v. 


Joseph  Sims,  with  notice  to  Joseph  B.  Sims, 
Benjamin  Jones,  and  Joseph  Johnson,  his 
assignees  and  terre  tenants. 


Levari  Facias. 
March  9, 1824. 


192  SUPREME  COURT  [Dec.  Term, 

(Henry  t>.  Sims.) 

22  March,  1824,  sold  No.  1,  to  Benjamin  Tilghman,  for  $9,100 
No.  2,  to  John  Wharton,  for  2,200 

By  cash,        -  $2,200. 

Received  April  24,  1824,  of  Sheriff  Douglas,  $2,085  61-100 
on  account  of  the  principal  debt  in  this  case,  also  seven  dollars 
and  seventy-five  cents,  attorney's  writ,  sheriff  and  levari  facias. 
Total  $2,093  36-100.  Signed, 

WILLIAM  H.  TOD,  Att.  for  A.  Henry." 

Then  followed  a  statement  of  the  amount  of  the  judgment,  and 
of  several  payments  on  account,  with  a  calculation  of  interest, 
concluding  as  follows : 

"  I  do  hereby  acknowledge  that  the  above  debt  is  settled  by 
John  Wharton,  Esq.,  with  the  plaintiff,  and  the  sheriff  is  exoner- 
ated from  any  responsibility  theretor. 

Signed,  WILLIAM  H.  TOD,  for  pl'ff." 

After  which  came  a  bill  of  costs,  including  sheriff's  poundage, 
costs  of  sale,  and  the  fee  for  entering  satisfaction,  and  a  receipt 
by  the  prothonotary  of  the  District  Court  for  his  costs. 

The  plaintiff  then  called  Thomas  Voight  as  a  witness  on  his 
part,  who  testified  as  follows : — "I  was  applied  to  by  Caleb  Car- 
malt  for  the  loan  of  some  money  to  Joseph  Sims :  he  was  acting 
as  Mr.  Sims'  Agent.  I  cannot  recollect  the  date  of  the  applica- 
tion, nor  the  date  of  the  mortgage.  It  was  in  the  fall  ;  there  was 
considerable  difficulty  as  concerned  the  searches,  more  particu- 
larly as  regarded  a  judgment  by  Mr.  Henry.  There  had  been 
no  satisfaction  entered  on  the  judgment  for  $10,600;  Mr.  Car- 
malt  was  acting  as  agent  for  me  also,  he  was  the  person  I  always 
employed — I  refused  to  lend  the  money  until  I  was  satisfied. 
Mr.  Sims  called  and  Mr.  Carmalt  called  together  occasionally  on 
me.  The  certificate  from  the  District  Court  of  Philadelphia 
county,  is  the  certificate  I  refer  to ;  on  that  certificate  I  let  him 
have  the  money.  The  delay  might  probably  be  ten  days  or  two 
weeks ;  the  date  of  the  mortgage  must  have  been  about 

r*1  cm  *  tne  ^ate  °^  tne  8earGnes  m  tne  District  Court.  The 
-I  date  of  the  mortgage  was  19th  February,  1828.  Don't 
recollect  whether  it  bore  date  from  the  time  the  money  was  act- 
ually paid  over,  or  from  the  time  I  agreed  to  lend  it." 

The  plaintiff  then  produced  the  appearance  docket  of  the  said 
District  Court,  for  the  term  of  September,  1828,  wherein  it  ap- 
peared, that  the  original  writ  of  summons  in  this  case,  issued 
28th  of  June,  1828,  returnable  to  said  term  of  September. 

The  plaintiff  having  closed  his  testimony,  the  defendant,  by  his 
counsel,  demurred  to  the  same,  alleging  it  to  be  insufficient  in 
law,  to  maintain  the  issue. 

The  plaintiff's  counsel  refused  to  join  in  demurrer  without  the 


1835.]  OF  PENNSYLVANIA.  193 

(Henry  v.  Sims.) 

direction  of  the  court,  and  contended,  that  if  the  court  gave  such 
direction,  the  defendant  should  be  put  under  terms  in  relation  to 
the  admission  on  record  on  certain  facts.  This  being  objected  to 
on  the  part  of  the  defendant,  the  point  was  argued  by  the  counsel 
on  both  sides. 

Whereupon  the  court  directed  the  plaintiff  to  join  in  the  de- 
murrer, upon  the  defendant's  admitting  on  the  record,  the  follow- 
ing circumstances,  it  appearing  to  the  court,  that  the  jury  might 
fairly  find,  that  the  evidence  legitimately  conduced  to  prove  them. 

"  First,  that  Caleb  Carmalt  had  authority  from  the  plaintiff,  to 
request  the  defendant  to  enter  satisfaction  of  the  judgment  in 
question. 

Second,  that  the  request  was  made  accordingly. 

Third,  that  a  conversation  did  take  place  on  the  subject  of  the 
satisfaction  fee,  in  which  Caleb  Carmalt  told  the  defendant  that 
if  it  was  not  paid,  he,  Carmalt  would  pay  it,  and  not  merely  that 
Caleb  Carmalt  thought  there  was  such  a  conversation." 

The  defendant's  counsel  (objecting,  however,  to  the  right  of  the 
court  to  make  such  direction)  made  the  admission  on  record  ac- 
cordingly. Whereupon  the  plaintiff's  counsel  joined  in  demurrer ; 
and  the  jury  were  discharged. 

On  this  demurrer,  the  court  below,  after  argument,  gave  judg- 
ment for  Joseph  Sims,  the  plaintiff  below. 

A  writ  of  inquiry  of  damages  Avas  thereupon  awarded,  and  a 
jury  summoned,  before  whom  the  parties  appeared,  and  the  case 
was  tried  ;  but  the  jury  not  agreeing  upon  any  inquisition,  was 
discharged  by  the  sheriff. 

Another  writ  of  inquiry  was  thereupon  issued,  and  another 
jury  summoned  ;  who  assessed  the  damages  at  three  thousand 
dollars. 

This  inquisition  was  set  aside  by  the  District  Court,  on  the 
ground  that  the  damages  were  excessive  ;  and  an  alias  writ  of  in- 
quiry issued  ;  whereupon  the  jury  assessed  the  damages  at  two 
thousand  five  hundred  dollars. 

*  The  defendant  then  moved  the  court  below  for  a  rule     r* ^94 1 
to  show  cause  why  this  second  inquisition  should  not  be 
set  aside,  for  the  following  reasons : 

"1.  Because  the  jury  had  found  more  than  nominal  damages, 
although  the  plaintiff  had  given  no  evidence  of  any  damage  what- 
ever. 

2.  Because  the  damages  were  excessive." 

This  rule  was  refused  by  the  court,  and  the  defendant  took 
nothing  by  his  motion. 

Judgment  was  accordingly  entered  on  this  inquisition  in  fa- 
vor of  the  plaintiff  below,  for  the  sum  of  twenty-five  hundred 
dollars. 


194  SUPREME  COURT  [Dec.  Term, 

(Henry  t>.  Sims.) 

The  defendant  having  removed  the  record  to  this  court,  assigned 
the  following  specification  of  error. 

"1.  The  court  below  erred  in  point  of  law,  in  giving  judgment 
for  the  plaintiff  below,  upon  the  demurrer  to  evidence  in  this  case, 
when  the  judgment  should  have  been  for  the  defendant. 

2.  The  court  below  erred  in  point  of  law,  in  giving  judgment 
for  the  plaintiff  below  for  more  than  nominal  damages,  although 
the  plaintiff  gave  no  evidence  of  any  damage  whatever." 

Mr.  Bayard,  for  the  plaintiff  in  error. 

1.  The  act  of  1791,  was  not  intended  to  provide  for  such  a  case 
as  the  present.  It  is  obviously  and  properly  confined  to  judg- 
ment for  the  recovery  of  money.  The  penalty,  which  is  to  be  not 
more  than  half  the  "debt  or  damages,"  for  which  the  judgment 
was  given,  proves  this.  There  are  several  species  of  judgments 
which  could  not  have  been  within  the  contemplation  of  the  legis- 
lature. A  judgment  in  partition,  in  dower,  and  other  real  actions, 
certainly  cannot  be  satisfied,  in  the  legal  sense,  yet  such  judg- 
ments are  docketted,  and  appear  on  the  certificates.  A  scire  facias 
upon  a  mortgage  is  a  proceeding  peculiar  to  Pennsylvania.  It 
was  given  by  the  act  of  1705,  and  supplies  the  place  of  the  Bill 
in  Equity.  It  is  a  proceeding  in  rem,  merely.  The  6th  section 
of  the  act  of  1705,  directs  what  judgment  shall  be  entered.  It  is 
a  judgment  specificially  de  terris.  The  practice  is  to  enter  judg- 
ment merely.  It  is  true,  that  in  this  case,  the  agreement  was, 
that  judgment  should  be  entered  for  10,600  dollars,  as  on  an 
award  of  arbitrators  ;  but  this  must  be  taken  with  reference  to 
the  scire  facias,  and  the  act  of  1705  ;  and  the  shor^  minutes  of 
our  dockets  are  only  the  materials  from  which  the  record  is  con- 
structed, Mercer  v.  Watson,  (1  Watts,  358.)  It  is  said  that  this 
judgment  appeared  from  the  certificate  to  be  a  general  judgment. 
So  would  other  judgments  which  are  clearly  not  within  the  act. 
A  slight  examination  of  the  record  would  show  that  it  was  not  a 
lien  beyond  the  mortgaged  premises.  Here,  *  there  was  the  re- 


r*1°/{n  snerift>  showing  that  the  property  mort- 

-*  gaged  had  been  sold  and  the  plaintiff  satisfied.  The 
act  of  28th  March,  1715,  requires  the  mortgagee  to  enter  satis- 
faction of  his  mortgage  in  the  Recorder's  Office,  within  three 
months  after  notice,  under  a  penalty  not  exceeding  the  mortgage 
money.  In  this  case,  satisfaction  had  been  entered  on  the  mort- 
gage. The  certificates  produced  by  the  plaintiff,  show  the  prac- 
tice and  understanding  of  scriveners  on  this  point. 

2.  The  plaintiff,  in  this  case,  was  not  within  the  act  of  1791. 
He  had  made  an  assignment  of  all  his  estate  ;  and  there  had  been 
a  sale  by  the  sheriff,  under  a  levari  facias.  If  any  one  had  a  right 
to  complain,  it  was  the  purchaser  at  the  sheriff's  sale.  .There 


1835.]  OF  PENNSYLVANIA.  195 

(Henry  v.  Sims.) 

ought  to  have  been  some  evidence  to  show  that  the  plaintiff  was 
damnified.  The  act  of  31st  March,  1823,  §  2,  which  is  in  pari 
materia,  speaks  of  the  person  damnified. 

3.  The  judgment  ought  to  have  been  entered  for  nominal  dam- 
ages only.  The  evidence  shows  that  it  was  not  a  case  for  more. 
[ROGERS,  J. — How  can  we  go  into  the  evidence  before  the  jury 
of  inquiry  ?  May  they  not  have  had  other  evidence  than  that  set 
forth  in  the  demurrer  ?]  I  apprehend  not.  The  only  way  to  cor- 
rect mistakes  of  the  inquest,  is  by  application  to  the  court  from 
which  the  writ  of  inquiry  issues ;  and  a  party  is  entitled  to  a  revis- 
ion of  the  opinion  of  that  court,  by  writ  of  error. 

Mr.  D.  P.  Brown,  and  Mr.  Tilghrnan,  for  the  defendant  in 
error. 

The  only  question  for  the  court  upon  this  writ  of  error  is, 
whether  the  judgment  in  the  case  of  Henry  v.  Sims,  was  a  judg- 
ment for  debt  or  damages,  within  the  act  of  1791.  The  verdicts 
of  two  juries  in  the  court  below,  have  settled  the  question  of  in- 
convenience, and  show  that  the  plaintiff  has  sustained  damages. 
This  court  cannot  enter  into  the  consideration  of  inferences  from 
matters  of  fact,  which  may  be  drawn  by  a  jury.  The  record 
shows  that  there  was  a  judgment  for  money  against  Mr.  Sims. 
The  plaintiff  treated  it  as  a  judgment  for  money,  and  by  means 
of  so  considering  it,  obtained  compound  interest  according  to 
the  practice  in  computing  interest  upon  a  scire  facias.  If 
Mr.  Sims  had  appealed  from  an  award  of  arbitrators  in  this 
scire  facias,  he  would  have  been  required  to  give  security  in 
double  the  amount  of  the  judgment.  This  shows  that  it  was  a 
judgment  for  money.  And  such  has  been  from  the  earliest  times, 
the  practice  in  entering  judgments  upon  a  scire  facias  on  a  mort- 
gage. A  mortgage  is  commonly  given  to  secure  payment  of  a 
bond.  If  judgment  be  entered  upon  the  bond,  does  the  entry  of 
satisfaction  of  such  judgment  relieve  the  mortgagee  from  the 
penalty  for  not  entering  satisfaction  on  the  mortgage  ?  The  cir- 
cumstance that  the  mortgage  in  this  case,  was  satisfied,  is  of  no 
importance,  since  the  act  of  1791  was  intended  to  protect  defend- 
ants from  "vexation  and  inconvenience  ;"  which  they  experience 
*from  the  existence  of  unsatisfied  liens;  and  strangers  r*iQA] 
cannot  be  expected  to  look  into  the  consideration  of 
judgments. 

Mr.  Chauncey,  in  reply. 

The  act  of  1791  was  intended  to  relieve  against  real  inconve- 
nience and. prevent  substantial  injury,  not  to  authorize  a  suit  for 
an  imaginary  or  trifling  evil.  The  preamble  shows  the  intention, 
when  it  speaks  of  the  "subsequent  purchasers  of  real  property." 


196  SUPREME  COURT  [Dec.  Term, 

(Henry  t>.  Sims.) 

[HUSTON,  J.  —  Suppose  a  man  have  no  real  estate  ;  would  he  not 
he  within  the  act?]  I  presume  he  would,  but  it  must  be  such  a 
judgment  as  would  import  a  debt  and  affect  his  credit. 

1.  A  judgment  in  a  srire  facias  on  a  mortgage,  is  not  to  be 
considered  anything  more  than  an  order  of  s^ale  of  the  mortgaged 
premises.     If  it  were  a  judgment  for  "  debt  or  damages"  within 
the  act  of  1791,  it  would  be  a  lien  on  other  real  estate  of  the  de- 
fendant ;  which  it  certainly  is  not.     It  is  not  the  basis  of  any  sub- 
sequent proceeding.     [HUSTON,  J.  —  If  the  judgment  upon  this 
kind  of  srire  facias  is  more  than  a  year  old,  is  it  not  the  practice 
to  issue  a  srire  f  arias  quare  executio  nonf]     It  is  the  practice, 
but  I  do  not  admit  it  to  be  necessary.     At  all  events,  it  cannot 
enlarge  the  sphere  of  the  original  judgment. 

2.  The  assignees  of  Mr.  Sims  were  the  real  defendants  in  the 
srire  faria#,  since  they  confessed  the  judgment.     The  penalty 
cannot  be  given  to  two  or  more  persons  distinctly.     Either  the 
assignees  or  the  purchaser  at  sheriff  sale,  must  be  considered  as 
the  party  aggrieved,  if  any  one  was  injured.     The  purchaser  at 
the  sheriff's  sale  may  have  a  right  to  keep  the  judgment  alive,  as 
a  link  in  his  chain  of  title.     Suppose  there  are  two  persons  of  the 
same  name,  the  index  of  judgments  will  not  distinguish  between 
them.     This  shows  the  necessity  of  looking  into  the  record.    The 
scruples  of  a  lender  of  money,  who  did  not  choose  to  search  the 
record,  could  not  have  been  within  the  contemplation  of  the  legis- 
lature.    The  record  in  this  case  shows,  that  the  fee  for  entering 
satisfaction,  was  paid  to  the  prothonotary. 

3.  This  is  not  an  arbitrary  penalty.     By  the  words  of  the  law 
it  is  to  be  proportioned  to  the  injury  sustained.    Here,  it  appears, 
that  Mr.  Sims  scarcely  knew  of  the  difficulty.     All  that  is  shown 
is,  that  the  scrivener  made  two  or  three  additional  calls  upon  Mr. 
Henry.     It  is  true,  that  generally,  a  court  of  error,  will  not  look 
into  the  proceedings  of  a  jury  in  the  court  below.     Here,  how- 
ever, the  evidence  was  all  on  paper.     It  was  not  like  the  case  of 
a  judgment  by  default.     The  inquest  had  no  more  authority  to  re- 
ceive additional  evidence  than  the  jury  at  the  bar,  if  they  had 
been  required  to  assess  the  damages.     The  court  below  decided 
that  the  jury  might  give  more  than  nominal  damages;  although 
the  plaintiff  had  given  no  evidence  of  any  damage  ;  and  this  ap- 
pears upon  the  record. 


r*1°/71  pi™on  °f  ^ie  court  was  delivered  by 

-•  HUSTON,  J.  —  Joseph  Sims  was  plaintiff  below,  and 
brought  a  suit  against  Alexander  Henry,  on  the  14th  section  of 
the  act  of  15th  of  April,  1791,  which  is  in  these  words  :  "  Whereas, 
it  frequently  happens,  that  judgments  long  remain  unsatisfied  on 
record,  although  the  moneys  for  which  those  judgments  have  been 


1835.]  OF  PENNSYLVANIA.  197 

(Henry  t>..  Sims.) 

rendered,  are  justly  discharged,  whereby  defendants,  in  such 
cases,  as  well  as  the  subsequent  purchasers  of  real  property  suffer 
much  vexation  and  inconvenience ;  Be  it  enacted,  that  each  and 
every  person  having  received  satisfaction  for  his  or  their  debt  or 
damages,  recovered  by  judgment  in  any  court  of  record  within 
this  commonwealth,  shall  at  the  request  of  the  defendant  or  de- 
fendants in  the  action,  or  of  his,  her,  or  their  legal  representatives, 
or  other  persons  concerned  in  interest  therein,  on  payment  of  the 
costs  of  suit,  and  on  tender  of  his  reasonable  charges  and  the 
costs  of  office  for  entering  satisfaction,  within  eighty  days  after 
such  request  made,  enter  satisfaction  of  the  judgment  in  the  office 
of  the  prothonotary  of  the  court,  where  such  judgment  was 
or  shall  be  entered  ;  which  shall  for  ever  thereafter  discharge, 
defeat  and  release  the  same :  and  if  such  person  having  received 
such  satisfaction  as  aforesaid,  by  himself  or  his  attorney,  shall 
not  within  eighty  days  after  request  and  payment  of  the  costs  of 
suit,  and  tender  of  charges  as  aforesaid,  repair  to  the  said  office, 
and  there  enter  satisfaction  as  aforesaid,  he,  she,  or  they,  neglect- 
ing or  refusing  so  to  do,  shall  forfeit  and  pay  unto  the  party  or 
parties  aggrieved  any  sum  of  money  not  exceeding  one-half  of 
the  debt  or  damages  so  adjudged  and  recovered,  to  be  sued  for 
and  demanded,  by  the  defendant  or  persons  damnified,  in  like 
manner  as  other  debts  are  now  recoverable  by  law  in  this  com 
monwealth. 

Joseph  Sims  had  given  to  Alexander  Henry,  a  mortgage  to  se- 
cure the  payment  of  10,000  dollars  and  interest.  Alexander 
Henry  had  sued  out  a  srire  facias  on  this  mortgage,  and  on  the 
23d  of  June,  1823,  the  defendant  agreed  to  a  judgment,  as  if  on 
a  report  of  arbitrators,  for  10,600  dollars,  and  judgment  thereon 
was  on  that  day  entered  on  the  docket ;  but  entered,  as  usual  in 
this  state,  by  setting  down  the  date,  and  writing  the  word  judg- 
ment. The  defendant  below  gave  no  evidence  ;  the  jury  gave  a 
verdict  for  2,500  dollars  ;  a  former  jury  had  given  3,000  dollars, 
which  the  court  had  set  aside. 

Mr.  Henry  had  issued  a  levari  facias,  and  sold  the  property 
mortgaged,  or  a  part  of  it  (and  it  did  not  appear  which,)  and  had 
received  the  whole  of  his  debt  and  interest ;  and  the  costs  of  all 
the  offices,  including  the  prothonotary's  fee  on  entering  satisfac- 
tion, had  been  paid  out  of  the  proceeds  of  the  sale.  Both  parties 
lived  in  this  city. 

Two  matters  of  defence  were  relied  on.  1.  That  the  judg- 
'  merit  which  was  plainly  entered  in  the  usual  form  on  the  docket, 
was  not  *  such  a  judgment  as  is  contemplated  by  the  act  piggl 
above  cited  ;  and  a  distinction  was  shown  to  exist  in 
England,  between  a  judgment  in  a  common  adversary  suit  for 
debt  or  damages,  which  is  that  the  plaintiff  shall  recover,  &c. 


198  SUPREME  COURT  [Dec.  Term, 

(Henry. c.  Sims.) 

(quod  recvperef)  and  a  judgment  on  a  scire  facias,  which  is,  that 
plaintiff  shall  have  execution,  *&c.  Admit  this  to  be  so  in  Eng- 
land, where,  perhaps,  no  scire  facias  ever  issues  except  on  a  judg- 
ment or  recognizance  of  record  in  the  court  which  issues  the  gcire 
facias.  But  here,  we  issue  in  the  Common  Pleas,  a  scire  facias 
on  a  recognizance  taken  in  the  Quarter  Sessions  or  other  criminal 
court ;  on  a  recognizance  taken  in  the  Orphans'  Court ;  on  the 
recognizance  of  a  sheriff  or  coroner,  and  sureties  taken  and 
recorded  in  the  recorder's  office,  and  on  a  mortgage  and  many 
other  matters.  And  long  and  uninterrupted  usage  has  sanctioned, 
or  perhaps  the  nature  of  the  proceedings  required,  that  the  judg- 
ment on  the  scire  facias  should  he  quod  recuperet.  An  old  act 
of  Assembly  gives  interest  on  a  judgment  in  this  state,  from  the 
time  of  entering  judgment ;  and,  perhaps,  from  that  reason,  on  a 
scire  facias  to  show  cause  why  an  execution  should  not  issue  on 
a  judgment  a  year  old,  the  judgment  here  is,  that  plaintiff 
recovers  his  debt  and  interest ;  and  the  year  having  elapsed,  a 
second  scire  facias  issues,  to  show  cause  why  execution  should 
not  issue  on  the  judgment  obtained  on  the  first  scire  facias,  and 
so  on ;  the  principal  and  interest  being  joined  to  make  the 
amount  of  each  new  judgment.  I  brought  this  matter  before  the 
Supreme  Court,  in  the  case  of  Fries  against  Watson,  (5  Binn. 
226,)  where  the  plaintiff  by  issuing  a  scire  facias  every  year, 
for  a  long  time,  had,  in  fact,  been  getting  interest  on  interest. 
Judge  Tilghman  was  so  struck  with  the  oppression  of  that  case, 
that  it  was  held  under  advisement ;  but  the  result  was  that  the 
practice,  though  directly  contrary  to  the  law  and  practice  in  Eng- 
lanb,  was  too  old,  and  too  well  established  to  be  altered,  except 
by  the  legislature. 

But  the  6th  section*  of  the  act  of  1705,  was  read  and  relied 
on.  That  act  prescribes  the  mode  of  proceeding  to  collect  the 
money  due  on  a  mortgage  ;  a  scire  facias  is  to  issue,  summoning 
the  defendant  to  appear  and  show  cause,  if  any  he  hath,  why 
the  mortgaged  premises  should  not  be  seized  and  taken  in  execu- 
tion, to  pay  the  mortgage  money  with  interest.  It  then  proceeds 
to  allow  of  defence  by  the  mortgagor  and  pleas,  and  that  he  may 
show  that  the  whole  or  part  of  the  debt  is  paid,  &c.,  &c.;  or  if  he 
does  not  appear,  an  inquest  in  certain  cases  is  to  ascertain  the 
amount  due,  "  and  the  definitive  judgment,  as  well  as  all  other 
judgments  to  be  given  upon  such  scire  facias,  shall  be  entered, 
that  the  plaintiff,  in  such  scire  facias  shall  have  execution  by 
levari  facias,  directed  to  the  proper  officer;"  by  virtue  of  which 
the  mortgaged  premises  are  to  be  sold,  &c. ;  and  it  was  strenu- 
ously contended,  that  this  act  was  express,  that  the  judg- 
ment should  be  only  that  execution  should  issue.  I  do  not 
admit  this  construction,  and  if  I  did,  the  consequence  contended 


1835.]  OF  PENNSYLVANIA.  199 

(Henry  v.  Sims.) 

*  for  would  not  follow.  The  act  does  not  purport  to  give  .-„,-,  QQ-, 
the  terms  of  the  judgment,  except  in  one  particular  ;  it  L 
designates  the  kind  of  execution,  viz.  a  levari  facias.  It  does  not 
say  it  shall  be  for  the  sum  found  by  the  jury  ;  it  does  not  even 
state  that  the  judgment  or  the  execution  shall  effect  the  lands 
alone  which  were  mortgaged.  The  officer  is  directed  to  take  and 
expose  to  sale  the  mortgaged  premises  ;  and  the  judgment  must 
be  to  levy  the  debt  of  those  lands  ;  but  this  arises  from  the  nature 
of  the  proceedings ;  it  is  not  directed  by  the  act.  The  words 
"definitive  judgment,  as  well  as  all  other  judgments,"  refer,  I  sup- 
pose, to  the  judgment  first  had  in  court;  and  to  judgment  on  a 
scire  facias  to  revive  that  judgment,  if  no  execution  has  issued  on 
it  within  a  year.  It  is  admitted  that  the  constant  practice  has 
been  to  issue  a  scire  facias  to  revive  the  first  judgment,  where 
execution  has  not  issued  within  a  year  ;  and  that  the  amount  of 
the  first  judgment  and  interest  from  its  date,  added  together,  make 
the  amount  of  a  second  judgment,  and  so  on  as  often  as  a  scire 
facias  issues. 

A  judgment  may  be  quod  recuperet,  and  yet  be,  that  it  be 
levied  from  particular  lands  ;  as  a  judgment  against  a  devisee  of 
lands  devised,  subject  to  the  payment  of  a  particular  sum.  So 
one  of  several  heirs  takes  land  at  a  valuation  in  the  Orphans' 
Court,  and  enters  into  recognizance  to  pay  money  to  another 
heir,  and  then  sells  the  lands  ;  and  debt  is  brought  or  scire  facias, 
on  the  recognizance,  with  notice  to  the  terre  tenant ;  on  such 
suit,  the  judgment  is,  as  to  the  terre  tenant,  to  be  levied  of  the 
lands  bound  by  the  recognizance.  Yet,  in  both  these  cases, 
there  is  a  judgment  within  the  letter  and  spirit,  too,  of  the  act  first 
cited  ;  if  the  amount  due  on  such  judgment  is  paid,  and  after  re- 
quest the  plaintiff  does  not  enter  satisfaction  on  such  judgment, 
I  can  find  no  reason  why  he  is  not  liable  to  the  penalty.  "Each 
and  every  person  having  received  satisfaction  for  his  or  their 
debt  or  damages  recovered  by  any  judgment  in  any  court  of  re- 
cord" would  seem  to  take  in  every  judgment  on  which  any 
execution  could  issue  or  which  bound  any  land  ;  and  if  it  does 
not  include  every  judgment  in  every  court  of  record,  which  can 
be  satisfied,  and  has  been  satisfied  by  payment  of  money,  I 
do  not  see  ho\v  it  can  include  any  judgment.  It  is  not  left  to 
this  or  any  other  court  to  discriminate.  There  may  be  a  defini- 
tive judgment  on  a  scire  facias  on  a  mortgage  ;  and  the  act  in 
question  has  no  restriction  to  the  peculiar  process  by  which  the 
judgment  was  brought  into  court:  nor  to  whether  it  binds  all 
lands  of  the  defendant,  or  only  part  of  his  lands  ;  or  whether  he 
has  any  lands  to  be  bound  by  it,  or  not.  I  then  suppose,  that 
the  practice,  as  far  back  as  we  have  information  of  the  mode  of 
entering  judgment  on  a  scire  facias  on  a  mortgage,  though 


199  SUPREME  COURT  [Dec.  Term, 

(Henry  c.  Sims.) 

questionable  at  first,  is  like  the  judgment  on  a  scire  facias  to 
show  cause  why  an  execution  should  not  issue,  too  old  and  too 
well  established  to  be  now  altered  ;  and  that  a  judgment  that  exe- 
r*9fi01  CU^OT1  issue,  is  *as  much  within  the  letter  and  spirit  of 
the  act  first  cited,  as  a  judgment  quod  recuperet.  It 
is  a  judgment  which  binds  lands,  on  which  an  execution  may  issue 
for  debts  or  damages  ;  and  if  the  debt  or  damages  are  paid,  and 
satisfaction  is  not  entered  on  request,  the  party  may  incur  the 
penalty  of  the  law. 

The  other  objection  urged,  was  to  the  damages.  It  is  so  well 
settled,  that  a  court  of  error  cannot  reverse  on  that  account, 
that  it  might  seem  enough  to  say  that  the  only  remedy  for  this 
was  by  a  motion  for  a  new  trial  ;  but  it  was  insisted  that  there 
may  be  cases  where  the  court  are  bound  to  tell  a  jury  that  only 
nominal  damages  can  be  given,  and  that  this  is  one  of  those 
cases.  I  will  observe  that  the  court  here  was  not  asked  to  tell 
the  jury  so.  There  would  be  no  end  of  reversing  judgments,  if 
we  should  reverse  because  the  court  did  not,  in  every  case  lay 
down  the  law  on  every  point  which  can  be  made  in  a  cause, 
although  the  point  was  not  brought  to  their  consideration.  But 
I  doubt  whether  there  is  any  general  rule,  which,  under  all  cir- 
cumstances, will  authorize  a  court  to  tell  a  jury  they  must  find 
only  nominal  damages.  When  an  act  is  done  which  really  in- 
jures no  one,  and  is  done  for  the  purpose  of  trying  a  right, 
nominal  damages,  are  generally  directed  ;  but  if,  from  the  evi- 
dence, the  jury  believe,  that  though  nominally,  to  try  a  right, 
yet  in  fact  it  was  done  maliciously,  or  vexatiously,  or  insolently, 
with  intention  to  injure  at  least  the  feelings  of  the  other  party  ; 
they  may  go  beyond  nominal  damages  ;  and  if  the  court  set  aside 
one  verdict  and  a  second  jury  find  in  the  same  manner,  I  would 
not  advise  a  judge  to  set  it  aside,  on  the  same  account ;  for  it  is 
the  legitimate  province  of  a  jury  to  find  not  only  that  a  fact  was 
done,  but  what  were  really  the  motives  and  manner  of  doing  it. 
There  is  nothing  in  the  act  in  question  from  which  it  can  be 
even  inferred  that  the  amount  of  the  verdict  should  depend  on 
the  damages  actually  sustained.  The  object  is  to  compel  a  man 
to  do  a  plain  act  of  justice,  the  omission  to  do  which  may  be 
vexatious  or  injurious  to  another.  There  is  a  description  of  those 
who  may  sue,  in  three  several  clauses  of  the  act ;  first,  the 
defendant  or  his  representatives  ;  next,  the  party  grieved  ;  and 
then,  the  defendant  in  the  judgment,  or  the  party  damnified, 
and  they  all  mean  the  same  thing ;  the  defendant,  or  party 
damnified,  cannot,  in  this  place,  be  tortured  to  mean  that  no 
person  can  sue  and  recover  unless  he  has  sustained  actual  dam- 
age. I  do  not  say,  that  if  actual  damage  has  been  sustained,  it 
may  not  form  a  proper  subject  of  consideration  with  a  jury  ;  but 


1835.]  OF  PENNSYLVANIA.  200 

(Wentz  D.  Wentz.) 

an  insolvent  person  may  sue  and  recover;  a  man  who  never 
owned  any  lands  may  sue  and  recover  ;  and  the  obstinacy  of  the 
plaintiff  in  the  judgment  in  refusing  to  enter  satisfaction ;  the 
manner  of  refusing ;  the  hardship  of  the  refusal ;  in  short,  every 
thing  which  can  and  does  make  acts  the  subject  of  praise  or  cen- 
sure ;  as  of  honesty  or  dishonesty,  of  kindness  or  cruelty,  may 
enter  into  the  consideration  of  the  jury  ;  and  *  I  doubt  r*9n-n 
whether  there  is  any  case  under  this  act,  where  the  L  ^W1J 
money  and  costs  are  admitted  to  be  paid,  and  where  the  plaintiff 
repeatedly  refuses  to  enter  satisfaction  without  excuse,  in  which 
a  court  could  tell  a  jury,  they  must  find  only  nominal  damages. 

Judgment  affirmed. 

Cited  by  Counsel,  2  Wharton,  324 ;  4  Id.  415 ;  7  Casey,  108 ;  8  Id.  429. 
Cited  by  the  Court,  1  P.  F.  Smith,  490  ;  2  Miles,  321. 
Doubted,  7  Watts,  479. 


[PHILADELPHIA,  FEBRUAKY  1,  1836.] 
WENTZ  against  WENTZ. 

IN    ERROR. 

One  died  seized  of  real  estate,  leaving  three  daughters,  one  of  whom,  A., 
was  married  to  B.  By  three  several  deeds  the  land  was  partitioned  be- 
tween them  ;  but  the  deed  to  B.  and  his  wife,  recited,  that  on  the  death 
of  her  father,  her  share  descended  to  B.  ;  and  conveyed  one-third  to  him, 
his  heirs  and  assigns.  After  the  death  of  B.,  his  widow  borrowed  money, 
and  gave  a  sealed  note  for  payment,  upon  which  judgment  was  entered, 
and  then  she  died.  C.,  the  son  of  A.  and  B.  became  administrator,  both 
of  his  father  and  mother,  and  applied  to  the  Orphans'  Court  for  the  sale 
of  the  land,  as  the  property  of  A.,  to  pay  her  debts.  The  court  refused 
the  application,  on  the  ground  that  it  was  the  property  of  B.  The  land 
was  afterwards  sold  by  virtue  of  proceedings  on  a  mortgage  given  by  A. 
and  B.  ;  the  suit  on  the  mortgage  being  against  C.  asad  ministrator  both 
of  A.  and  B.  The  balance  of  the  purchase  money,  after  paying  the 
mortgage,  was  brought  into  court,  where  it  was  directed  to  be  paid  to  C. 
"administrator,  &c.,  as  aforesaid;'''  and  was  received  by  him.  In  a 
scire  facias,  on  the  judgment  above  mentioned,  brought  against  C.,  as 
administrator  of  A.,  it  was  held  that  C.  must  be  taken  to  have  received 
the  money  as  administrator  of  A. ;  and,  consequently,  that  he  was  liable 
for  the  amount  to  the  plaintitf  in  the  scire  facias. 

WRIT  of  error  to  the  Court  of  Common  Pleas  of  the  County 
of  Chester,  to  remove  the  record  of  a  scire  facias  upon  a  judg- 
ment obtained  in  that  court  by  Maria  Wentz,  and  Arthur  Ann- 
strong,  administrators,  &c.,  of  Thomas  Wentz,  deceased,  to  the 
use  of  Mary  H.  Brinton,  against  John  T.  Wentz,  who  survived 
Samuel  R.  Wentz,  administrator,  &c.,  of  Mary  Wentz,  deceased. 


201  SUPREME  COURT  [Dec.  Term, 

(Wentz  v.  Wentz.) 

In  the  court  below,  the  following  case  was  stated  for  the  opin- 
ion of  the  court,  to  be  considered  in  the  nature  of  a  special  ver- 
dict, viz. : 

"A  tract  of  land,  containing  two  hundred  acres,  descended 
from  Charles  Kinkead  to  his  three  daughters,  Hannah,  Jane,  and 
Mary  (who  intermarried  with  Isaac  Wentz,)  as  tenants  in  com- 
mon. They  divided  it,  and  executed  deeds  of  partition,  duly  ac- 
knowledged and  recorded  (copies  of  which  are  annexed,  marked 
A,  B  and  C.)  On  the  4th  of  July,  A.  D.  1807,  Isaac  Wentz, 
and  Mary  his  wife,  mortgaged  the  tract  conveyed  to  them  to 
Thomas  Wistar ;  which  mortgage,  by  several  assignments,  subse- 
r*2021  quently  became  the  property  *of  Abraham  W.  Sharp- 
J  less.  Afterwards  Isaac  Wentz  died,  leaving  his  wile 
Mary  to  survive  him ;  and  on  the  13th  August,  .1829,  a  judgment 
was  entered  in  the  Court  of  Common  Pleas  of  Chester  county,  in 
favor  of  Maria  Wentz  and  Arthur  Armstrong,  administrators  of 
Thomas  Wentz,  deceased,  against  the  said  Mary  Wentz,  which 
was  subsequently  assigned  to  Mary  H.  Brinton.  Afterwards 
Mary  Wentz  died,  and  letters  of  administration  upon  her  estate 
were  granted  to  John  T.  Wentz,  and  Samuel  R.  Wentz.  At,  or 
about  the  same  time,  letters  of  administration,  de  bonis  non,  &c.,  on 
the  estate  of  Isaac  Wentz,  were  granted  to  the  said  John  T.  Wentz. 

Suit  having  been  instituted  by  the  said  administrators  of 
Thomas  Wentz,  a  loan  of  the  money  upon  the  security  and 
transfer  of  the  said  judgment  to  the  said  Mary  H.  Brinton,  was 
negotiated  through  the  instrumentality  of  the  administrators  of 
Mary  Wentz,  who,  apprehending  the  title  to  the  property  de- 
scribed in  the  deed  A,  to  be  in  Mary  Wentz,  supposed  they 
could  obtain  an  order  from  the  Orphans'  Court  of  Chester  county 
to  sell  the  same,  for  the  payment  of  the  debts  of  the  said  Mary. 
Application  by  petition  to  the  said  court,  was  accordingly  made 
— but  the  court  being  of  opinion  that  the  title  to  two-thirds  of 
said  property  was  in  Isaac  Wentz,  and  not  in  Mary,  refused  to 
grant  an  order  of  sale,  and  recommended  a  sale  under  the  mortgage 
to  Thomas  Wistar.  Accordingly,  levari  facias ,  at  the  suit  of 
Abraham  W.  Sharpless,  assignee  of  Isaac  W.  Morris,  who  was 
assignee  of  John  Price,  executor,  &c.,  of  Thomas  Wistar,  de- 
ceased, against  John  T.  Wentz,  administrator,  &c.,  of  Isaac 
Wentz,  deceased,  and  John  T.  Wentz,  and  Samuel  R.  Wentz, 
administrators,  £c.,  of  Mary  Wentz,  deceased — issued  out  of  the 
Court  of  Common  Pleas  of  said  county,  returnable  to  February 
term,  1833  ;  by  virtue  of  which  the  sheriff  of  said  county  sold  the 
said  property,  described  in  deed  A,  to  Hannah  Kinkead,  for 
$4,000.  Out  of  the  proceeds  of  sale,  the  said  mortgage  was  dis- 
charged, and  on  the  22d  day  of  September,  1834,  the  undisputed 
one-third  of  the  balance,  belonging  to  the  estate  of  Mary  Wentz, 


1835.]  OF  PENNSYLVANIA.  202 

(Wentz  v.  Wentz.) 

was  applied  in  part  payment  of  a  judgment,  recovered  against 
the  said  Mary  Wentz,  by  Hannah  Kinkead,  prior  to  the  judgment 
in  favor  of  the  administrators  of  Thomas  Wentz,  leaving  still 
due  on  the  said  judgment,  in  favor  of  Hannah  Kinkead,  the  sum 
of  $394  78|.  The  remaining  two-thirds  of  the  balance  of  the 
said  purchase  money,  consisting  of  $1,686  40,  was  paid  into  the 
said  Court  of  Common  Pleas,  by  the  sheriff,  in  pursuance  of  a 
rule  granted  by  the  said  court,  in  the  said  case  of  Sharpless, 
assignee,  £c.,  against  Wentz,  a*dministrator,  &c.,  (as  above 
recited,)  of  which  the  following  is  a  copy  of  the  docket  entry : 
'  February  llth,  1833 — On  motion  of  Mr.  Bell,  of  counsel  Avith 
John  T.  Wentz,  administrator,  &c.,  rule  on  the  sheriff  to  pay 
into  court  the  sum  of  $1,686  40,  being  two-thirds  of  the  balance 
of  the  said  purchase  money,  after  deducting  *the  r^ono-i 
amount  levied  under  the  above  mentioned  execution  with  L 
costs.'  On  the  same  day,  John  T.  Wentz  obtained  from  the  said 
court,  in  the  said  case,  a  further  rule,  of  which  the  following  is  a 
copy  of  the  docket  entry  :  '  February  llth,  1833 — On  motion  of 
Mr.  Bell,  rule  to  show  cause  why  John  T.  Wentz,  administrator, 
&c.,  as  aforesaid,  should  not  take  out  of  court,  the  said  sum  of 
$1686  40.'  On  the  10th  day  of  April,  1833,  the  rule  was 
enlarged,  until  the  10th  day  of  June,  then  next,  and  the  said  court 
directed  '  notice  to  be  given  to  the  administrators  of  Mary  Wentz, 
deceased,  and  to  the  creditors  and  others  interested  in  the  estate 
of  the  said  Mary  Wentz,  deceased,  by  publication  of  a  copy 
thereof  for  four  weeks  successively,  prior  to  the  said  10th  day 
of  June,  in  the  Village  Record,  and  American  Republican  and 
Chester  County  Democrat.'  On  the  return  of  the  said  rule, 
proof  was  made  to  the  satisfaction  of  the  said  Court  of  Common 
Pleas,  of  the  due . publication  of  a  notice  in  the  newspapers, 
mentioned  in  the  said  order  of  the  court.  On  the  13th  of  June, 
1833,  no  person  having  appeared  to  object,  the  said  court  being 
of  opinion  that  the  said  John  T.  Wentz,  as  administrator,  &c., 
of  Isaac  Wentz,  deceaseds,  was  entitled  to  receive  the  said  sum  of 
$1686  40,  made  the  said  last  mentioned  rule  obtained  by  him, 
absolute — and,  on  the  same  day,  the  prothonotary  of  the  said 
court  paid  to  the  said  John  T.  Wentz,  the  said  sum,  who  gave  the 
following  receipt: 

'Rec'd  June  13th,  1833,  of  John  W.  Cunningham,  prothono- 
tary, one  thousand  six  hundred  seventy-six  dollars  and  ninety- 
seven  cents,  pursuant  to  order  of  court. 

$1676  97.'  JOHN  T.  WENTZ. 

The  said  John  T.  Wentz  has  since,  and  before  the  bringing  of 
this  suit,  distributed  the  said  money  among  the  heirs  of  Isaac 
Weritz,  deceased,  the  said  John  T.  Wentz,  administrator,  &c.,  of 

VOL.  i. — 14 


203  SUPREME  COURT  [Dec.  Term, 

(Wentze.  Wentz.) 

Isaac  Wentz,  being  the  same  John  T.  Wentz  who  is  also  surviving 
administrator,  &c.,  of  Mary  Wentz,  and  the  heirs  of  the  said 
Isaac  Wentz,  being  the  same  persons  as  the  heirs  of  the  said 
Mary  Wentz,  to  wit:  the  said  John  T.  Wentz,  Charles  K.  Wentz, 
Samuel  R.  Wentz,  Jeremiah  M.  Wentz,  George  G.  Wentz,  Isaac 
Wentz,  and  Hannah  Wentz. 

The  question  for  the  opinion  of  the  Court  is,  whether  the  said 
plaintiffs,  to  the  use  of  Mary  H.  Brinton,  are  entitled  to  recover 
from  the  said  John  T.  Wentz*,  as  surviving  administrator  of  the 
said  Maria  Wentz,  deceased,  the  said  sum  of  $1686  40,  or  any 
part  thereof.  If  the  court  shall  be  of  opinion  with  the  plaintiffs, 
then  judgment  to  be  entered  for  such  sum  as  the  court  shall  think 
due,  with  costs.  But  if  the  court  shall  be  of  opinion  with  the 
defendants,  then  judgment  to  be  entered  for  the  defendants,  with 
costs. 

(Signed)         W.  H.  DILLINGHAM,  Plaintiff"1*  Attorney. 
THOMAS  S.  BELL,  Defendant'*  Attorney. 

June  8,  1835." 


f*2041  f  partition,  referred  to  in  the  foregoing 

J     statement,  were  dated  respectively  on  the  13th  of  June, 
1801.     The  deed  marked  A  was  as  follows: 

"This  indenture,  made  the  thirteenth  day  of  June,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  one,  between  Isaac 
Wentz,  and  Mary  his  wife,  of  Sadsbury  township,  in  the  county 
of  Chester,  and  State  of  Pennsylvania,  said  Mary  being  one  of 
the  daughters  of  Charles  Kinkead,  late  of  the  township  and  place 
aforesaid,  deceased,  of  the  one  part,  Hannah  Kinkead  of  the 
township  and  state  aforesaid,  another  daughter  of  the  said  Charles 
Kinkead,  deceased,  of  the  second  part,  and  Jane  Kinkead  of  the 
township,  county  and  state  aforesaid,  also,  another  of  the  daugh- 
ters of  Charles  Kinkead,  deceased,  of  the  third  part.  Whereas 
the  said  Charles  Kinkead,  late  father  of  the  said  Mary  Kinkead, 
Hannah  Kinkead,  and  Jane  Kinkead,  died  seized  in  his  demesne, 
88  of  fee  of  and  in  a  certain  tract  of  land,  situated  in  Sadsbury 
township,  Chester  county,  and  state  aforesaid,  containing  two 
hundred  acres,  and  allowance  of  six  per  cent,  for  roads,  &c.,  as 
by  patent,  bearing  date  the  10th  of  December,  A.  D.  1745,  given 
under  the  hands  and  seals  of  John  Penn,  Thomas  Penn,  and 
Richard  Penn,  Esquires,  absolute  proprietors,  of  the  state  afore- 
said, recorded  in  the  office  for  the  recording  of  deeds  for  the 
county  and  city  of  Philadelphia,  in  Patt  Book,  vol  15,  page 
273,  reference  being  had  thereunto,  will  more  explicitly  appear, 
without  leaving  behind  him  any  male  heir,  or  making  any  dis- 
position of  the  above  described  premises,  or  any  part  thereof, 
by  will  or  otherwise,  whereby  and  by  which  means,  all  and  sin- 


1835.]  OF  PENNSYLVANIA.  204 

(Wentz  «.  Wentz.) 

gular,  the  said  above  described  premises,  a  tract  of  land,  the  real 
estate  of  Charles  Kinkead,  deceased,  are  descended  and  come 
unto  the  said  Isaac  Wentz,  Hannah  Kinkead,  and  Jane  Kinkead, 
his  said  daughters,  and  daughter's  husband.  NOAV  this  indenture 
witnesseth,  that  the  said  Isaac  Wentz,  and  Mary  his  wife,  and 
Hannah  Kinkead,  and  Jane  Kinkead,  have  made  partition,  and 
by  these  presents  do  make  full,  perfect,  and  absolute  partition,  of 
the  above  described  tract  of  land,  to  and  amongst  them,  the  said 
Isaac  Wentz,  Hannah  Kinkead,  and  Jane  Kinkead,  three  parts, 
in  the  manner  following^  that  is  to  say,  that  the  said  Isaac  Wentz, 
his  heirs  or  assigns,  shall  have,  hold  and  enjoy,  to  the  only 
proper  use  and  behoof  of  the  said  Isaac  Wentz,  his  heirs  and 
assigns  for  ever,  all  that  the  following  described  piece  or  par- 
cel of  land,  situated  in  Sadsbury  township,  Chester  county,  and 
state  aforesaid,  [here  follows  a  description,]  containing  eighty- 
eight  acres,  and  one  hundred  and  thirty  perches  of  land,  be 
the  same  more  or  less,  for  the  full  share  and  proportion  of  his, 
the  said  Isaac  Wentz,  of,  and  in,  and  to,  all  and  every  mes- 
suages, hereditaments,  and  premises,  above  mentioned,  so  de- 
scended unto  them,  the  said  Isaac  Wentz,  Hannah  Kinkead, 
and  Jane  Kinkead,  as  aforesaid  :  and  the  said  *  Hannah  Kinkead 
and  Jane  Kinkead  do,  and  each  of  them  doth,  by  these  r*oncn 
presents,  grant,  assign,  release,  and  confirm  unto  the 
said  Isaac  Wentz,  his  heirs  and  assigns,  the  said  messuages,  he- 
reditaments, and  appurtenances,  so  as  aforesaid  agreed  to  be  held, 
as  aforesaid,  his  full  share  or  proportion  of  the  premises  above 
mentioned,  and  descended  as  aforesaid  to  the  said  Isaac  Wentz, 
Hannah  Kinkead,  and  Jane  Kinkead,  and  all  the  estate,  right, 
title,  interest,  claim,  challenge,  and  demand  whatsoever,  of  them, 
the  said  Hannah  Kinkead,  and  Jane  Kinkead,  of,  in,  or  to,  the 
said  messuage,  piece  or  parcel  of  land,  above  mentioned  and 
descended,  and  hereby  released  unto  the  said  Isaac  Wentz,  as 
aforesaid,  to  have  and  to  hold  the  said  messuage,  piece  or  parcel 
of  land,  with  the  appurtenances,  hereby  released  and  confirmed, 
as  mentioned  or  intended,  so  to  be  unto  the  said  Isaac  Wentz,  his 
heirs  and  assigns  for  ever,  and  the  said  Hannah  Kinkead,  and 
Jane  Kinkead,  doth  hereby  grant,  for  themselves  and  their  heirs, 
that  they  and  their  heirs,  the  said  described  piece  or  parcel  of 
land,  containing  eighty-eight  acres,  and  one  hundred  and  thirty 
perches,  be  the  same  more  or  less,  hereditaments  and  appurte- 
nances, unto  the  said  Isaac  Wentz,  his  heirs  and  assigns,  against 
them,  the  said  Hannah  Kinkead,  and  Jane  Kinkead,  and  their 
heirs  and  assigns,  against  all  and  every  other  person  or  persons 
whomsoever,  lawfully  claiming,  or  to  claim  the  same,  or  any 
part  thereof,  shall  and  will  warrant,  prove,  and  defend.  In  wit- 
ness whereof,  &c." 


205  SUPREME  COURT  [Dec.  Term, 

(Wentz  v.  Wentz.) 

The  deeds  marked  B  and  C,  were  similar  in  their  recitals  to  the 
preceding.  They  conveyed  to  Hannah  Kinkead,  and  Jane  Kink- 
ead,  respectively,  their  respective  heirs  and  assigns,  the  parts  or 
shares  which,  by  the  alleged  partition,  were  allotted  to  them,  in 
severalty  ;  and  each  contained  a  covenant  of  general  warranty,  by 
Isaac  Wentz,  and  Mary  his  wife. 

The  following  is  a  copy  of  the  note  given  by  Mary  Wentz  : 

"  Sixty  days  after  date,  I  promise  to  pay  Thomas  Wentz,  his 
heirs  and  assigns,  the  just  and  full  sum  of  twelve  hundred  and 
ninety-nine  dollars,  twenty-one  cents,  in  lawful  money  of  Penn- 
sylvania, with  interest  from  the  date  hereof.  I  further  authorize 
and  empower  the  prothonotary  of  Chester  county,  to  enter  judg- 
ment against  me,  and  my  heirs  and  assigns,  without  defalcation  ; 
with  stay  of  execution  till  after  the  date  hereof,  as  witness  my 
hand  and  seal,  this  3d  day  of  December,  one.  thousand  eight  hun- 
dred and  twenty-seven.  MARY  WENTZ,  [L.  s.] 

Witnesses  present, 
JOHN  T.  WENTZ, 
MARIA  WENTZ." 
r*9ftfiT        *  Endorsed  thereon  was  the  following  : 

"  The  balance  due  the  estate  of  Thomas  Wentz,  de- 
ceased, on  the  within  obligation,  having  been  paid  to  the  adminis- 
trators, by  Mary  H.  Brinton,  of  the  borough  of  West  Chester,  on 
the  19th  of  January,  1832,  (the  particular  sum  appearing  on  the  cal- 
culation made  and  in  her  possession.)  We,  the  said  administrators, 
in  consideration  of  the  same,  hereby  assign,  transfer,  and  set  over 
this  obligation,  and  all  right  of  recovering  the  amount  yet  due 
on  the  same,  to  her,  the  said  Mary  H.  Brinton,  her  executors, 
administrators  and  assigns.  Witness  our  hands  and  seals,  Febru- 
ary 24th,  1832.  MARIA  WENTZ,  [L.  s.] 

ARTHUR  ARMSTRONG,  [L.  s.] 
Sealed  and  delivered  in  the 
presence  of 

I.  A.  DANNER. 

The  interest  has  been  paid  up  to  the  19th  of  January,  1832,  to 
Mr.  A.  Armstrong,  one  of  T.  Wentz's  administrators." 
The  following  is  a  copy  of  the  entries  on  the  docket : 

In  the  Common  Pleas  of  Chester 


"Maria  Wentz  and  Arthur 
Armstrong,     administra- 


•*&» 


tors,     &c.,    of    Thomas 


Mary  Wentz. 


county. 

August  13th,  1829. — Judgment 
for  the  Plaintiffs,  for  the  sum  of 


,,r 

ltz'  d  $1,299  21,  with  interest  thereon 


from   the    3d   day    of    December, 

1827. 


(See  Judgment  Docket,  J.  p.  10.) 


1835.]  OF  PENNSYLVANIA.  206 

(Wentz  «.  Wentz.) 

For  value  received,  I,  Arthur  Armstrong,  one  of  the  adminis- 
trators above  named,  do  hereby  assign,  transfer,  and  set  over, 
unto  Mary  H.  Brinton,  her  executors,  administrators,  and  as- 
signs, the  above  stated  judgment,  and  all  moneys  due,  and  to  be- 
come due  thereon ;  and  also  the  obligation  and  warrant  of  attor- 
ney, upon,  and  by  virtue  of  which  the  said  judgment  was  entered 
and  obtained,  and  all  the  right  and  interest  of  the  said  administra- 
tors, the  plaintiffs  above  named,  in,  and  to  the  same. 

Witness  my  hand  and  seal,  this  19th  day  of  January,  Anno 
Domini,  1832.  ARTHUR  ARMSTRONG,  [L.  s.] 

Signed,  sealed,  and  delivered, 
in  the  presence  of 
FRANCIS  JAMES, 
THOMAS  WILLIAMSON. 

I,  John  Thomas  Wentz,  one  of  the  administrators,  &c.,  of 
Mary  Wentz,  the  defendant  above  named,  deceased  ;  do  hereby 
confess  and  acknowledge,  that  the  above  mentioned  principal 
sum  of  *  twelve  hundred  and  ninety-nine  dollars,  and  r*o()71 
twenty-one  cents,  at  this  day  remains  due  and  unpaid 
upon  the  above  stated  judgment. 

Witness  my  hand  and  seal,  this  19th  day  of  January,  A.  D. 
1832. 

JOHN  T.  WENTZ,  [L.  s.] 

Witnesses  present, 

FRANCIS  JAMES, 
THOMAS  WILLIAMSON." 

The  letter  of  attorney,  referred  to  in  the  statement,  is  as  fol- 
lows: 

"  To  all  people  to  whom  these  presents  shall  conle,  I,  Maria 
Wentz,  one  of  the  administrators  of  Thomas  Wentz,  deceased  ;  do 
hereby  authorize  and  empower  my  co-administrator,  Arthur  Arm- 
strong, in  my  name  and  stead,  and  in  my  behalf,  to  assign  and 
and  transfer  to  Mr.  Williamson,  of  Chester  County,  a  certain 
judgment,  now  held  by  the  estate  of  the  said  Thomas  Wentz,  de- 
ceased, against  the  estate  of  Mary  Wentz,  in  sai(l  county  of 
Chester,  hereby  investing  the  said  Arthur  Armstrong,  with  full 
power  to  act  in  the  premises,  as  if  I  were  personally  present. 

Witness  my  hand  and  seal,  this  18th  day  of  January,  A.  D, 

1832. 

MARIA  WENTZ,  [L.  s.J 

Lancaster  City,  88.: 

Personally  appeared  before  me,  a  Justice  of  the  Peace,  of  the 
county  of  Lancaster,  Maria  Wentz,  above  named,  and  in  due 


207 


SUPREME  COURT 


[Dec.  Term, 


(Wentz  v.  Wentz.) 

form  of  law,  acknowledged  the  above  instrument  to  be  her  act  and 
deed,  and  desired  the  same  to  be  recorded  as  such. 

Witness  my  hand  and  seal,  this  18th  day  of  January,  1832. 

GEORGE  MATTER,  [L.  s.]" 

The  notice  given  by  the  prothonotary,  in  pursuance  of  thp 
order  of  the  court,  was  as  follows : 

"Notice. 

Abraham  W.  Sharpless,  assignee  of 
Isaac  W.  Morris,  who  was  assignee  of 
John  Peirce,  executor,  &c.,  of  Thomas 
Wistar,  deceased. 


vs. 


In  the  Common  Pleas  of 
Chester  county,  of  Feb- 
ruary term,  1835. — Le- 
vari  Facias. 
Land  sold  to  Hannah 
Kinkead,  for  $1000. 


[*208] 


John  T.  Wentz,  administrator,  &c.,  de 
bonis  non,  of  Isaac  Wents,  deceased, 
and  John  T.  Wentz  and  Samuel  R. 
Wentz,  administrators,  &c.,  of  Mary 
Wentz,  deceased. 

Amount  of  money  paid  into  court  by  the  sheriff,  in  pursuance 
of  a  rule  obtained  on  him  for  that  purpose,  $1686  40,  being  two- 
thirds  of  the  balance  of  said  purchase  money,  after  deducting  the 
amount  levied  under  the  above  mentioned  execution,  with  costs. 
*  February  18, 1833.  On  motion  of  Mr.  Bell,  rule  to 
show  cause,  why  John  T.  Wentz,  administrator,  de  bonis 
non,  as  aforesaid,  should  not  take  out  of  court  the  said  sum  of 
$1686  40.  April  10,  rule  enlarged  until  the  10th  day  of  June 
next,  and  notice  to  be  given  to  the  administrators  of  Mary  Wentz, 
deceased,  and  to  the  creditors  and  others  interested  in  the  estate 
of  the  said  Mary  Wentz,  deceased,  by  publication  of  a  copy 
thereof,  for  four  weeks  successively,  prior  to  the  said  10th  day  of 
June,  in  the  Village  Record,  and  American  Republican  and 
Chester  County  Democrat. 

From  the  record,  JOHN  W.  CUNNINGHAM,  ProiKy. 

April  24, 1833." 

The  following  is  a  copy  of  the  docket  entries  in  this  case  : 

"  Abram  'W.  Sharpless,  assignee  of 
Isaac  W.  Morris,  who  was  assignee  of 
John  Peirce,  executor,  &c.,  of  Thomas 
Wistar,  deceased. 


vs. 


John  T.  Wentz,  administrator,  de 
bonis  non,  of  Isaac  Wentz,  deceased 
and  John  T.  Wentz,  and  Samuel  R. 
Wentz,  administrators,  &c.,  of  Mary 
Wentz,  deceased. 


In  the  Common  Pleas  of 
Chester  county,  of  Feb- 
ruary term,  1833. — Le- 
vari  Facias. 
Land  sold  to  Hannah 
Kinkead,  for  $4000. 


1835.]  OF  PENNSYLVANIA.  208 

(Wentz  v.  Wentz.) 

February  11,  1833.  On  motion  of  Mr.  Bell,  of  counsel  with 
John  T.  Wentz,  administrator,  &c.,  rule  on  the  sheriff  to  pay  into 
court  the  sum  of  $1686  40,  being  two-thirds  of  the  balance  of  the 
said  purchase- money,  after  deducting  the  amount  levied  under  the 
above  mentioned  execution,  with  costs. 

February  11,  1833.  On  motion  of  Mr.  Bell,  rule  to  show 
cause  why  John  T.  Wentz,  administrator,  &c.,  as  aforesaid, 
should  not  take  out  of  court,  the  said  sum  of  $1686  40.  April 
10,  1833,  rule  enlarged  until  the  10th  day  of  June  next,  and 
notice  to  be  given  to  the  administrators  of  Mary  Wentz,  deceased, 
and  to  the  creditors  and  others,  interested  in  the  estate  of  the 
said  Mary  Wentz,  deceased,  by  publication  of  a  copy  thereof,  for 
four  weeks  successively,  prior  to  the  said  10th  day  of  June,  in 
the  Village  Record,  and  American  Republican  and  Chester  County 
Democrat." 

Upon  this  case,  the  Court  of  Common  Pleas  rendered  judgment 
for  the  defendant.  Whereupon  the  plaintiff  removed  the  record 
to  this  court. 

Mr.  Dillingham,  for  the  plaintiff  in  error.  This  is  a  case  of 
great  hardship  for  Miss  Brinton,  the  party  for  whose  use  this 
scire  facias  was  prosecuted,  if  the  decision  of  the  court  below  is 
to  be  sustained.  The  conduct  of  the  defendant,  throughout  these 
transactions,  was  *  such  as  equity  is  always  eager  to  re-  r*oAcn 
lieve  against.  There  is  no  obstacle  in  the  way  of  a  de- 
cision by  this  court  upon  the  merits,  since  it  was  agreed  that  the 
question  should  be  raised  upon  this  issue. 

1.  There  can  be  doubt  of  the  intentions  of  the  parties  to  the 
deeds  of  partition.     The  papers  were  drawn  by  a  person  ignorant 
of  the  laws  regulating  the  descent  of  land  in  this  state,  and  un- 
skilful in  conveyancing.     The  object  was  merely  to  make  par- 
tition, not  to  alter  the  right  of  the  married  sister,  Mrs.  Wentz. 
This  is  obvious  from  the  recital.     Here  is  the  case  of  a  mistake, 
then,  which  this  court  has  more  than  once  allowed  to  be  corrected 
on  parol  evidence.     Leek.  v.  Cowley,  (10  Serg.  &  R.  176,)  is 
in  point.     Thompson  v.  M' Clenachan ,  (17   Serg.  &  R.  110.) 
Equity  will,  under  these  circumstances,  consider  Isaac  Wentz  as 
holding  the  fee  in  trust  for  his  wife  ;  and,  on  his  death,  his  heir 
at  law,  would  be  held  to  have  succeeded  to  the  legal  estate  only, 
and  a  conveyance  would  be  directed.     In  our  courts,  this  convey- 
ance would  be  presumed,  and  Mrs.  Wentz  could  have  recovered 
in   ejectment.     2  Roper  on   Husband  and  Wife,  ch.  18,  151  ; 
Fogehonger  v.  Somerville,  (6  Serg.  &  R.  267  ;)  Stoolfoos  v. 
Jenkins,  (8  Serg.  &  R.  167  ;)  W  Culloh  v.  Wallace,  (8  Serg.  & 
R.  181.) 

2.  The  loan,  by  Miss  Brinton  to  the  estate  of  Mary  Wentz, 


209  SUPREME  COURT  [Dec.  Term, 

(Wentz  t>.  Wentz.) 

was  made  on  the  faith  of  her  being  the  owner  of  this  land,  and 
on  the  application  and  representation  of  John  T.  Wentz,  who 
acted  in  the  double  capacity  of  administrator  of  the  goods,  &c., 
of  his  mother,  and  administrator,  de  b-mis  non,  &c.,  of  his  father. 
He  was  a  witness  to  the  assignment  of  the  judgment ;  and  applied 
to  the  Orphans'  Court  for  authority  to  sell  this  land  as  the  pro- 
perty of  his  mother.  Then,  when  the  land  was  sold  under  the 
mortgage  given  by  his  father  and  mother,  it  was  his  duty  to  apply 
the  balance  of  the  proceeds  to  the  payment  of  Miss  Brinton's 
judgment,  or  at  least  to  have  given  her  sufficient  personal  notice 
of  the  proceedings  to  have  enabled  her  to  make  application  for  it. 
Instead  of  doing  this,  he  applied,  through  his  attorney,  to  the 
court,  for  leave  to  take  it  out.  The  docket  entries  show,  that  the 
application  was  made  by  him  as  "  administrator,"  &c.,  yet  the 
advertisement  states  him  as  "administrator,  de  bonis  won,"  &c. 
I  contend  that  this  notice  was  insufficient ;  and  Miss  Brinton 
being  the  only  creditor,  and  living  on  the  opposite  side  of  the 
street,  in  the  same  town,  the  want  of  personal  notice  to  her,  im- 
plies a  fraudulent  intent,  which  vitiates  the  whole  proceeding. 
We  do  not  deny,  that  the  decree  of  the  court  is  conclusive  ;  but 
we  submit  that  the  defendant  received  and  holds  the  money  as 
trustee  for  Miss  Brinton. 

Mr.  Bell,  for  the  defendant  in  error.  It  is  well  settled,  that 
the  decree  of  a  court  of  competent  jurisdiction  will  not  be  over- 
F*9im  hauled  *in  a  collateral  proceeding.  The  act  of  1827, 
J  gave  the  Common  Pleas  plenary  power  in  proceedings 
of  this  kind.  Nothing  but  proof  of  fraud  will  countervail  this. 
Fraud  is  never  to  be  presumed.  The  defendant  complied  strictly 
with  the  orders  of  the  court,  who  proceeded  with  great  caution. 
It  is  said,  that  he  should  have  claimed  this  money  as  adminis- 
trator of  Mary  Wentz.  The  answer  to  this  is,  that  the  Orphans' 
Court  had  decided  against  him  on  this  point,  and  declared  the 
property  not  to  be  in  Mary  Wentz.  Besides,  there  were  judg- 
ment creditors  of  Mary  Wentz,  as  against  whom  the  adminis- 
trator was  not  entitled  to  recover  the  money.  He  has  distributed 
this  money  on  the  faith  of  the  decree  of  the  court,  and  if  it  be 
recovered  in  this  proceeding,  he  has  no  remedy.  Clark  v.  Calla- 
ghan,  (2  Watts.  261.)  It  is  said  that  Isaac  Wentz  was  trustee 
for  his  wife,  and  that  equity  will  correct  the  mistake.  There  is 
no  case  showing  that  equity  will  interfere  after  a  lapse  of  twenty 
years,  in  favor  of  a  creditor  of  the  alleged  cestui  que  trust,  whose 
lien  accrued  after  the  transaction.  Sugden  on  Vendors,  &c.  107. 
The  cases  of  Ml  Culloh  v.  Wallace,  Foyehonger  v.  Somerville,  and 
Stoolfoos  v.  Jenkins,  go  upon  the  ground  that  the  Orphans'  Court 
had  not  power  to  decree  the  wife's  estate  to  her  husband.  Here 


1835.]  OF  PENNSYLVANIA.  210 

(Wentz  v.  Wentz.) 

there  is  no  evidence  that  the  wife  did  riot  intend  to  give  her  estate 
to  her  husband.  The  deeds  were  all  executed  on  the  same  day, 
and  in  the  presence  of  the  same  witnesses.  It  is  to  be  presumed, 
that  Mrs.  Wentz  was  fully  conusant  of  the  whole  proceeding. 

Mr.  Sergeant,  in  reply.  If  there  was  not  actual  fraud  in  the 
receipt  of  this  money,  there  is  certainly  mala  fides  in  retaining 
it,  against  the  creditor  of  the.  mother,  whose  estate  they  knew  it 
to  be.  It  is  said  that  there  has  been  an  adjudication  in  this  case, 
which  cannot  be  got  over.  Now,  in  the  first  place,  the  money 
was  adjudicated  to  "John  T.  Wentz,  administrator"  &c.,upon 
a  rule  which  spoke  of  him  as  "administrator  as  aforesaid;"  that 
is,  with  reference  to  the  title  of  the  suit,  in  which  he  is  named  as 
administrator  both  of  his  father  and  mother.  Then,  who  were 
the  parties  to  this  decree  ?  The  plaintiff  in  the  execution  was 
satisfied.  The  defendant  was  the  only  party.  Why  did  he  not 
make  Miss  Brinton  a  party  ?  There  was  not  such  notice  as  law 
and  justice  required.  The  defendant  was  trustee  for  her,  and 
could  not  act  for  himself.  In  fact,  he  went  before  the  court  in 
two  capacities,  and  asked  the  court  to  decide  in  which  he  was  to 
retain  the  money.  The  act  of  1827  applies  to  cases  of  dispute 
among  creditors ;  not  to  a  case  like  this.  It  is  said,  that  equity 
will  not  correct  mistakes,  unless  they  are  clearly  proved.  This 
does  not  mean  proof  aliunde.  Here  the  proof  is  in  the  paper 
itself.  The  very  first  recital  is  a  plain  legal  falsehood.  The  sole 
consideration  for  the  conveyance  is  the  *idea  that,  on  r*9i-n 
the  death  of  the  wife's  father,  her  share  of  his  real 
estate  descended  to  her  husband.  Nothing  but  a  partition  was 
intended  by  the  parties. 

The  opinion  of  the  court  was  delivered  by 

GIBSON,  C.  J. — The  vesting  of  the  legal  title  in  Isaac  Wentz 
was  so  palpably  the  effect  of  mismanagement  in  making  partition 
among  the  sisters,  and  not  of  an  original  purpose  to  convey  to 
him,  that  a  Chancellor  would  not  have  hesitated  to  compel  him  to 
convey  to  his  wife.  The  deeds  seem  to  have  been  prepared 
and  executed  under  a  common  error,  in  believing  him  to  be  enti- 
tled to  her  land,  as  well  as  her  chattels ;  and  the  case  is,  conse- 
quently, one  which  equity  should  have  instantly  set  right.*  Per- 
haps it  would  be  found,  that,  as  nothing  moved  from  him,  there 
was  no  consideration  to  raise  a  use  to  him  by  bargain  and  sale ; 
and  that  he  had  not  the  estate  even  at  law.  But,  in  the  one  or 
the  other  of  these  aspects,  the  proceeds  of  it  belonged  to  the 

*See  3  Watts  &  Sergeant,  230,  522 ;  12  Casey,  387 ;  10  Wright,  346 ;  8 
P.  F.  Smith,  386. 


211  SUPREME  COURT.  [Dec.  Term, 

(Wentz  t>.  Wentz.) 

creditors  of  the  wife,  when  they  were  brought  into  court ;  and  it 
is  to  be  seen  whether  they  passed  by  an  adjudication  adverse  to 
her  title,  when  they  were  taken  out. 

It  is  not  disputed,  that,  as  to  everything  adjudicated,  a  decree 
of  distribution  concludes  the  rights  of  all  who  were  parties  to  it, 
either  immediately  or  by  representation.  If,  then,  it  be  consid- 
ered that  the  money  was  decreed  to  the  son,  as  the  administrator 
of  his  father,  and  not  of  his  mother,  the  decree  must  be  held 
adverse  to  the  mother's  creditors,  and  conclude  their  rights ;  but 
if  it  be  considered  as  decreed  to  him,  without  discrimination  of 
character,  the  law  will  refer  the  receipt  of  it  to  that  character,  in 
which  alone  it  could,  without  a  special  decree,  be  legally  re- 
ceived. Now,  though  an  administrator  may  not  be  allowed  to 
handle  the  proceeds  of  land  in  court,  in  order  to  pay  it  over  to 
the  lien  creditors,  whose  recourse  to  the  fund  is  immediate,  he 
may  undoubtedly  demand  for  the  general  creditors,  where  there 
are  any,  whatever  remains  after  satisfaction  of  the  liens,  in  order 
to  bring  it  into  a  course  of  administration.  Unless,  then,  the 
fund  was  explicitly  awarded  to  the  son,  as  the  administrator  of 
the  father  exclusively,  we  must  say,  that  no  more  was  adjudi- 
cated against  the  interests  of  the  plaintiff  in  the  present  action, 
than  that  she  was  not  entitled  by  virtue  of  her  judgment  as  a 
lien  ;  that  she  was  put  upon  the  footing  of  a  creditor  whose  debt 
had  survived  its  lien,  and  whose  right  to  receive,  is  to  be  post- 
poned to  that  of  the  representative  of  her  fellow  creditors,  with 
whom  she  is  to  come  in  pari  passu.  Nor  are  the  consequences 
different,  though  she  be  the  only  remaining  creditor;  for  her 
lien  being  put  aside,  the  money  goes  into  a  course  of  admin- 
istration on  general  principles,  and  she  can  receive  payment  but 
at  his  hands.  Such  may  not  have  been  the  intended  principle 
r*21*?l  *  °^  tne  Decree,  but  such  is  its  legal  effect.  On  the 
maxim,  then,  that  co-existent  rights,  in  the  same  indi- 
viduals, are  to  be  treated  as  if  they  existed  separately  in  differ- 
ent individuals,  the  question  is,  how  far  does  the  decree  of  dis- 
tribution purport  to  distinguish  between  the  representative  of  the 
husband  and  the  representative  of  the  wife  ?  The  money  being 
in  court,  the  son  in  whom  both  characters  were  united,  but  not 
blended,  procured  a  rule  to  show  cause  why  the  "  administrator, 
&c.,  as  aforesaid,"  should  not  have  leave  to  take  it  out.  These 
words,  "  administrator,  &c.,  as  aforesaid,"  palpably  refer  to  the 
title  of  the  levari  facias,  on  which  the  money  was  made;  in  the 
record  of  which  the  rule  was  entered,  and  in  which  he  is  named 
a  defendant,  as  the  administrator,  respectively  of  both  his  father 
and  his  mother.  It  is  true  that  it  is  stated  in  the  body  of  the 
case,  that  he  was  adjudged  to  be  entitled  as  the  administrator  of 
his  father,  which,  taking  it  to  be  conclusively  established  by  the 


1835.]  OF  PENNSYLVANIA.  212 

(M'Knightfl.Read.) 

agreement,  would  carry  the  cause  against  the  plaintiff.  But  in 
the  record,  which  is  a  part  of  the  case  by  express  reference,  no 
more  appears  than  that  the  rule  was  simply  made  absolute ;  and, 
consequently,  that  the  money  was  ordered  to  him  without  dis- 
tinction of  character.  That  fact  being  established,  the  result  is, 
that  the  fund,  though  actually  distributed  among  the  children  of 
his  father,  potentially  remains  in  his  hands,  for  his  mother's 
creditors;  and  that  the  plaintiff,  being  the  only  creditor,  is 
entitled  to  have  execution  for  the  principal  and  interest  of  her 
judgment. 

Judgment  of  the  court  below  reversed,  and  judgment  for  the 
plaintiff,  according  to  the  terms  of  the  case. 


[* PHILADELPHIA,  FEBRUARY  1,  1836.]  [*213] 

M'KNIGHT  against  READ  and  Others. 

CASE   STATED. 

A  testator  gave  one-third  of  his  estate,  real  and  personal,  to  his  wife,  one 
other  third  to  his  children,  who  may  be  living  at  the  time  of  my  death  ;" 
directing  the  interest  to  be  paid  to  their  guardians  ;  and  as  to  the  re- 
maining one-third,  he  directed  that  out  of  the  principal  of  the  one-third 

.  of  his  personal  estate,  which  might  remain,  after  ' '  the  foregoing  devises 
were  satisfied,"  his  executors  should  pay  certain  pecuniary  legacies,  and 
if  there  should  not  be  sufficient  money  from  this  source,  that  his  real 
estate  should  be  sold  for  the  purpose  :  and  as  to  certain  annuities  which 
he  gave,  he  directed  that  they  should  be  "paid  out  of  the  rent  of  the 
third  part  of  the  real  estate,  thereby  devised,  or  out  of  the  interest  of 
the  third  part  of  the  personal  estate,  thereby  devised,  which  may 
remain  after  the  payment  of  pecuniary  legacies  ;  or  out  of  the  interests 
of  the  proceeds  of  sale  of  the  real  estate."  In  another  part  of  the  will, 
the  testator  appointed  a  guardian  for  his  son  A.,  and  a  guardian  for  his 
daughter  B.  At  the  date  of  his  will,  and  at  the  time  of  his  death,  he 
had  two  children,  A.  and  B.,  and  his  wife  was  pregnant  with  a  third  child, 
who  was  born  after  his  death.  Held,  1.  That  the  child  in  ventre  sa  mere, 
was  not  to  be  considered  as  living,  within  the  meaning  of  the  will ;  and, 
consequently,  that  under  the  act  of  1794,  the  will  was  revoked,  so  far  as 
respected  the  share  or  proportion  of  such  child,  of  the  estate.  2.  That 
he  took  one-third  of  two-thirds  thereof,  which  was  to  be  deducted,  in  the 
first  place,  from  the  whole  amount ;  that  the  remainder  was  to  be  divided 
into  three  parts ;  of  which  the  widow  was  to  have  one-third  ;  the  two 
children,  A.  and  B.,  one-third  between  them,  and  the  collateral  legatees, 
the  remaining  third.  3.  That  the  collateral  legacies  were  to  abate  in 
equal  proportions. 

THIS  was  an  action  brought  by  Catherine  M'Knight  against 
Alexander  Read  and  Frederick  V.  Krug,  executors  of  the  will 


213  SUPREME  COURT  [Dec.  Term, 

(M 'Knight  c.  Read.) 

of  James  Gray,  deceased,  to  recover  the  arrears  of  an  annuity  be- 
queathed to  the  plaintiff  by  the  said  James  Gray. 

A  case  was  stated  for  the  opinion  of  the  court,  and  the  follow- 
ing facts  were  agreed  upon,  to  be  considered  in  the  nature  of  a 
special  verdict. 

James  Gray,  of  the  City  of  Philadelphia,  made  his  will,  dated 
the  25th  day  of  May,  1833,  in  the  following  terms: 

"  Be  it  remembered  that  I,  James  Gray,  of  the  City  of  Phila- 
delphia, merchant,  do  make  and  ordain  this,  my  last  will  and 
testament,  hereby  revoking  all  other  wills  by  me  heretofore 
made. 

Item.  I  direct  that  all  my  just  debts,  and  funeral  expenses,  be 
fully  paid  and  satisfied. 

Item.  I  direct,  that  after  my  decease  a  just  and  true  appraise- 
ment of  all  my  estate,  real  and  personal,  be  made,  as  soon  as 
practicable,  by  two  respectable  men,  to  be  appointed  by  my  exe- 
cutors, hereinafter  named,  and  delivered  to  them  to  guide  and 
regulate  the  disposition,  hereinafter  made. 

f*2141  *Item.  I  give  and  devise  to  my  beloved  wife  Ellen, 
J  for  her  sole  and  separate  use,  in  fee  simple,  one  full, 
equal,  undivided  third  part  of  my  estate,  real  and  personal,  sub- 
ject to  the  power  of  sale  hereinafter  vested ;  and  she  is  hereby 
permitted  to  make  her  selection  of  such  articles  of  personal  estate, 
at  the  appraised  value,  to  the  amount  of  one- third  of  the  value  of 
my  personal  estate,  as  she  may  choose  ;  and  if  she  does  not  select 
to  the  amount  of  one-third,  then  my  executors,  hereinafter  named, 
are  required  to  pay  her  the  balance  of  her  third  of  my  personal 
estate  in  money. 

Item.  I  give  and  devise,  one  other  full,  equal,  and  undivided 
third  part  of  my  estate,  real  and  personal,  to  my  beloved  children, 
who  may  be  living  at  the  time  of  my  death,  in  fee  simple,  as 
tenants  in  common,  and  if  any  of  my  children  should  be  dead  at 
the  time  of  my  decease,  leaving  lawful  issue,  then,  I  give  and  de- 
vise to  such  issue,  as  tenants  in  common,  in  fee  simple,  the  share 
or  shares  which  would  have  passed  or  gone  to  his  or  her,  or  their 
parent  or  parents,  if  they  had  been  living  at  the  time  of  my 
death  ;  and  it  is  my  desire  and  will,  that  the  share  or  part  of  my 
personal  estate,  herein  devised  to  my  children,  shall  be  put  out 
at  interest,  and  managed  by  my  executors,  hereinafter  named,  to 
the  best  advantage,  until  my  said  children  shall  respectively  at- 
tain to  full  age,  or  be  married.  The  income  and  interest  to  be 
paid  over  to  their  guardians,  hereinafter  named  ;  and  as  to  the 
real  estate  hereby  devised  to  my  said  children,  the  same  is  to  be 
subject  to  the  power  of  sale,  hereinafter  directed  ;  and  the  said 
income  of  the  real  estate,  herein  devised  to  my  children,  so  long 
as  it  may  remain  unsold,  shall  be  received  by  my  executors,  and 


1835.]  OF  PENNSYLVANIA.  214 

(M 'Knight  v.  Read.) 

paid  over  to  the  guardians,  respectively  of  my  children,  until  they 
severally  attain  full  age,  or  marriage  ;  and  in  case  my  said  daugh- 
ter shall  marry,  then  I  direct,  that  the  portion  of  personal  and 
real  estate  devised  to  her,  shall  be  held  by  her  to  her  sole  and 
separate  use,  without  any  control  or  interference  of  any  husband 
she  may  have. 

Item.  As  touching  or  concerning  the  other  remaining  one, 
full,  equal,  undivided  third  part  of  my  estate,  real  and  personal, 
I  order  and  direct  that  out  of  the  principal  of  the  one-third  of  my 
personal  estate,  which  may  remain  after  the  foregoing  devises  are 
satisfied,  that  my  executors  pay  and  discharge  the  several  pecu- 
niary legacies  which  I  have  given  ;  and  if  there  shall  not  be  suf- 
ficient money  arising  from  this  source,  that  then  my  real  estate 
may  be  sold,  to  accomplish  said  object,  as  hereinafter  directed. 
And  as  to  the»  yearly  sums  or  annuities  which  I  am  now  about  to 
give  and  devise  ;  I  direct,  that  the  same  be  paid  out  of  the  rent 
of  the  third  part  of  my  real  estate,  hereby  devised,  or  out  of  the 
interest  moneys  of  the  third  part  of  my  personal  estate,  hereby 
devised,  which  may  remain  after  the  payment  of  pecuniary  lega- 
cies, or  out  of  the  interest  of  proceeds  of  sales  of  my  real  estate, 
which  may  be  made,  as  hereinafter  directed.  In  accordance  with 
the  foregoing  regulations,*!  give  and  devise  to  my  r*oic-i 
nephew,  John  Johnstone,  the  sum  of  five  hundred  dol- 
lars, as  soon  as  he  is  regularly  licensed  to  preach  the  gospel,  to 
purchase  a  library  for  his  use. 

Item.  I  give  and  devise  to  my  beloved  mother,  the  sum  of 
three  hundred  dollars  per  annum,  to  be  paid  to  her  by  my  execu- 
tors, half  yearly,  for  and  during  the  term  of  her  natural  life. 

Item.  I  give  and  devise  to  my  sister,  Catharine  M'Kriight,  the 
sum  of  two  hundred  dollars  per  annum,  to  be  paid  to  her  by  my 
executors,  half  yearly,  during  her  natural  life,  if  she  shall  so  long 
remain  unmarried. 

Item.  I  give  and  devise  to  my  nephew,  John  Johnstone,  the 
sum  of  three  hundred  dollars  per  annum  ;  to  be  paid  to  him  half 
yearly,  by  my  executors,  for  his  support  and  education,  until  he 
shall  be  licensed  to  preach  the  gospel,  and  for  one  year  thereafter, 
but  no  longer  ;  and  it  is  my  desire,  that  his  education  be  full  and 
complete,  as  far  as  is  practicable. 

Item.  If  the  debts  due  to  me  from  the  estates  of  Joseph 
Thornborough,  deceased,  and  his  niece,  Susan  Mosher,  deceased, 
be  not  paid  off  before  my  death,  then  I  give  and  devise  the  inter- 
est which  may  become  due  from  those  debts,  from  the  time  of 
my  death,  to  be  paid  over,  half  yearly,  by  my  executors,  to  my 
sister-in-law,  Mrs.  Isabella  Sample,  to  pay  for  the  education  of 
her  children,  according  to  her  judgment ;  and  if  her  children 
severally  attain  to  full  age,  then  I  give  and  devise  the  principal 


215  SUPREME  COURT  [Dec.  Term, 

(M 'Knight  t).  Read.) 

of  said  debts  to  said  children,  or  those  who  may  arrive  at  age,  to 
be  equally  divided  among  them,  share  and  share  alike. 

Item.  I  direct  my  executors  to  place  out  at  interest,  on  good 
security,  at  the  best  interest  they  can  obtain,  (but  not  exceeding 
legal  interest,)  the  sum  of  two  thousand  dollars  ;  and  the  interest 
thereof  I  direct  them  to  receive  and  pay  over,  half  yearly,  for,  and 
in  discharge  of,  the  education  of  my  brother  William's  children, 
so  far  as  the  same  may  be  needed  and  adequate. 

Item.  I  direct,  that  the  sum  of  one  thousand  dollars  be  put 
out  at  interest,  in  like  manner  as  above  stated,  and  the  interest 
thereof  to  be  paid  over,  half  yearly,  for,  and  in  the  education  of 
the  children  of  my  sister,  Ann  Johnstone,  excepting  her  son,  John 
Johnstone,  whose  education  is  hereinbefore  provided  for. 

Item.  I  give  and  devise  to  the  corporation  of  the  Dutch  Re- 
formed Church,  in  Crown  street,  Philadelphia,  the  interest  I  have 
in  a  pew  in  said  church,  and  I  direct  that  the  same  be  sold  by 
them,  for  the  best  price  that  can  be  obtained  therefor,  the  pro- 
ceeds to  be  paid  to  the  treasurer,  and  the  amount  thereof  be  ex- 
pended by  the  deacons  of  said  church,  in  installments  of  twenty- 
five  dollars  per  annum,  until  the  whole  sum  is  exhausted,  in  pur- 
chasing fuel  for  poor  female  members  of  that  church,  according  to 
the  discretion  of  the  deacons. 

Item.  As  to  all  the  rest,  residue,  and  remainder  of  my  estate, 
r*91fi1  *  wheresoever  and  whatsoever,  I  give  and  devise  one- 
L  ^"J  third  part  thereof  to  my  sister,  Sidney  Binnis,  and  her 
heirs  ;  and  the  remaining  two-thirds  parts,  I  give  and  devise  to  the 
children  of  my  sisters,  Ann  Johnstone  and  Mary  Roland,  and  my 
brother  William,  to  be  divided  amongst  them  in  equal  parts,  as 
tenants  in  common  in  fee. 

Item.  I  nominate  and  appoint  my  brother-in-law,  Joseph 
Mosher,  Esq.,  of  Lancaster  county,  to  be  guardian  of  the  person 
and  estate  of  my  daughter  Isabella,  and  my  friend,  Frederick  V. 
Krug,  of  this  city,  to  be  guardian  of  the  person  and  estate  of  my 
son  James. 

Item.  I  constitute  and  appoint  my  brother-in-law,  Alexander 
Read,  and  my  friend,  Frederick  V.  Krug,  to  be  the  executors  of 
this,  my  last  will  and  testament. 

And  whereas,  it  may  be  necessary,  in  order  to  raise  money  to 
pay  legacies,  or  to  make  advantageous  dispositions  and  invest- 
ments, or  to  save  the  expense  of  partitions,  in  order  to  make 
easy  and  just  distribution  of  my  real  estate,  that  a  power  be 
vested  in  my  executors  to  make  sale  thereof.  Now,  I  do  hereby 
authorize  and  empower  my  said  executors,  and  the  survivor  of 
them,  to  make  sale  of  my  real  estate,  according  to  their  judg- 
ment and  discretion,  and  as  may  seem  to  them  best  for  the  inte- 
rest of  my  estate,  and  good  and  sufficient  deeds  therefor,  to 


1835.]  OF  PENNSYLVANIA.  216 

(M 'Knight  t>.  Read.) 

make  and  execute  to  the  purchaser  ;  and  the  proceeds  of  said  sales 
to  invest,  on  good  security,  in  the  public  stocks,  or  ground  rents, 
or  bonds  and  mortgages,  for  the  same  uses  and  purposes  and  per- 
sons as  the  real  estate,  so  to  be  sold,  appropriated,  and  devised, 
in  this  my  last  will  and  testament.  And  I  direct  that  my  execu- 
tors have,  and  take  the  care  and  management  of  my  real  estate, 
so  as  to  receive  the  rents,  lease,  and  repair  the  same,  and  pay  all 
taxes  and  other  incumbrances,  so  long  as  the  same  remains  unsold 
and  undivided ;  the  nett  income  thereof,  so  received  by  them,  to 
be  divided  and  appropriated  half  yearly,  according  to  the  terms 
and  provisions  of  this  my  will. 

In  witness  whereof,  the  whole  of  the  foregoing  will  being  my 
own  hand  writing,  I  have  hereunto  set  my  hand  and  seal,  this 
twenty-fifth  day  of  May,  anno  Domini,  one  thousand  eight  hun- 
dred and  thirty-three." 

The  testator  died  on  the  26th  day  of  June,  1833,  being  then 
absent  from  home,  on  a  journey  to  the  western  states.  At  the 
time  of  his  death  he  left  a  widow  and  two  children,  Isabella  and 
James,  (who  are  still  living,)  and  left  his  wife  pregnant  with  a 
son,  who  was  born  in  the  month  of  October  following,  and  named 
Alexander,  and  is  still  living. 

The  defendants  proved  the  will, .and  took  out  letters  testament- 
ary. '  The  nett  value  of  the  real  and  personal  estate  of  the  tes- 
tator, after  payment  of  his  debts,  will  be  from  $36,000  to 
$40,000. 

*  The  questions  submitted  to  the  court,  upon  the  fore-  r*oi7-| 
going  facts,  are : 

1.  Whether,  so  far  as  regards  his  posthumous  son,  Alexander, 
the  said  James  Gray  died  intestate ;  or  whether  the  said  Alexan- 
der is  included,  and  will  take,  under  the  devise  by  the  testator, 
"  of  one  full,  equal,  and  undivided  third  part  of  his  estate,  real 
and  personal,  to  his  beloved  children  who  may  be  living  at  the 
time  of  his  death." 

2.  If  the  said  James  Gray  died  intestate,  so  far  as  regards  his 
after  born  child,  Alexander,  then  what  share  or  proportion  of  his 
father's  real  and  personal  estate  the  said  Alexander  is  to  take,  and 
what  shares  and  proportions  are  to  be  taken  by  the  other  two 
children,  Isabella  and  James. 

3.  If  the  said  James  Gray  died  intestate,  so  far  as  regards  his 
after  born  child,  Alexander,  and  the  court  should  be  of  opinion 
that  the  said  Alexander  is  entitled  to  one-third  of  the  real  and 
personal  estate  of  his  father,  subject  to  the  interest  (if  intestate) 

.  of  his  mother  therein,  then  whether  the  pecuniary  legacies,  and 
also  the  annuities,  including  the  annuity  bequeathed  to  the  plain- 
tiff, are  to  be  paid  in  full,  or  abated  pro  rata. 

4.  If  the  said  James  Gray  died  intestate,  so  far  as  regards  his 


217  SUPREME  COURT  [Dec.  Term, 

(M 'Knight*.  Read.) 

said  after  born  child,  Alexander,  is  the  power  of  sale  given  by 
the  will  to  the  executors  revoked,  as  to  the  part  which  the  said 
Alexander  will  take. 

Mr.  F.  W.  ffubbell,  for  the  plaintiff.  The  testator  gives  one- 
third  of  his  estate  to  his  children,  who  may  be  "  living  at  the 
time  of  his  death."  I  contend  that  the  posthumous  child  is  to 
be  considered  as  living  at  the  time  of  the  death  of  the  testator ; 
and,  therefore, Hhat  he  was  "provided  for"  within  the  meaning 
of  the  23d  section  of  the  act  of  17th  April,  1794.  The  authori- 
ties show  that  children  "  living,"  include  such  as  may  be  "  in 
ventre  sa  mere."  Pemberton  v.  Parke,  (5  Binn.  601 ;)  Swift  v. 
Duffield,  (5  Serg.  &  R.  38.)  The  words  of  this  will  are  exactly 
the  same  with  those  in  Pemberton  v.  Parke.  The  words,  "  if 
any  of  my  children  should  be  dead  at  the  time  of  my  decease," 
&c.,  must  refer  to  more  than  two.  As  to  the  rights  of  the  an- 
nuitants, and  other  legatees,  there  are  no  words  which  will  post- 
pone them,  as  among  themselves.  2  .Williams  on  Executors, 
837,  841.  When  the  bequest  is  of  a  sum  which  is  to  supply  an 
annual  interest,  it  is  an  annnuity.  I  contend  that,  as  regards  the 
real  estate,  there  is  no  postponement  of  the  annuitants  to  the 
pecuniary  legatees.  It  is  impossible  now  to  say,  what  the  in- 
tention of  the  testator  was,  except  as  it  may  be  gathered  from 
the  will ;  and  it  would  seem,  from  this,  that  he  did  not  desire  to 
leave  his  children  a  large  proportion  of  his  property.  As  to  the 
power  of  sale,  that  seems  to  be  settled  by  Coates  v.  ffuyhes,  (3 
Binn.  498.) 

r*9181  *Mr.  James  S.  Smith,  for  the  defendants.  The  rule, 
that  a  child  in  ventre  sa  mere  is  to  be  considered  as 
living  at  the  death  of  its  parent,  is  an  artificial  one,  introduced 
by  the  English  courts,  to  prevent  certain  hardships  which  would 
otherwise  ensue.  Wilson  v.  Brush,  (4  Johns.  Oh.  Rep.  506;) 
4  Kent's  Com.  506 ;  2  Williams  on  Executors,  94.  If  it  be  for 
the  benefit  of  the  child  that  the  contrary  doctrine  should  prevail, 
he  will  be  considered  as  not  living.  Watkyns  on  Descents,  142 ; 
Doe  v.  Clark,  (2  Hen.  Black.  394 ;)  1  Ves.  sen.  86 ;  Swin- 
burne, pt.  4,  s.  15.  In  Swift  v.  Duffield,  Judge  Duncan  stated 
the  rule  in  the  same  way.  The  consequence  of  admitting  this 
child  to  share  in  the  one-third  given  by  the  testator  to  his 
children,  will  be  to  reduce  them  to  about  $4,000  each ;  while  the 
collateral  relations  will  get  about  $17,000  among  them.  The 
will  shows,  that  he  did  not  look  forward  to  the  birth  of  his 
child.  1st.  He  provides  that  the  interest  upon  the  shares  of  his 
children  shall  be  paid  to  their  "guardians,  hereinafter  named." 
He  afterward  names  guardians  for  James  and  Isabella,  but 


1835.]  OF  PENNSYLVANIA.  218 

(M 'Knight «.  Read.) 

takes  no  notice  of  the  unborn  child.  2d.  It  was  his  obvious  in- 
tent to  protect  the  share  of  a  female  child.  This  is  evident  from 
the  provision  for  the  share  of  Isabella.  Yet  nothing  is  said 
respecting  the  unborn  child  ;  whose  sex  was  of  course  unknown. 
It  is  evident  that  Mr.  Gray  supposed  himself  to  be  richer  than  it 
turns  out  that  he  was.  The  words  of  the  bequests  to  the  collat- 
eral relations  are  rather  remarkable.  He  gives  but  the  principal 
of  the  third  part  of  his  estate,  "after  the  foregoing  devises  are 
satisfied."  This  may  be  supposed  to  mean,  after  all  contingencies. 
He  knew  that  a  large  part  of  his  estate  consisted  of  outstanding 
debts.  The  case  of  Coates  v.  Hughes,  decides  that  the  birth  of 
issue  is  not  an  absolute  revocation,  but  only  so  as  to  matters  in 
which  it  may  be  beneficial  to  the  wife  or  child  to  have  it  so  con- 
sidered. The  word  any,  relied  upon  on  the  other  side,,  has  various 
meanings,  and  may  be  applied  to  one  of  two,  as  well  as  any  other 
number.  We  agree  that  Coates  v.  Huylies  rules  this  case,  as  to 
the  power  to  sell. 

Mr.  Hubbell,  in  reply.  The  general  rule  is,  that  the  word  liv- 
ing applies  to  infants  in  ventre  tsa  mere  ;  but  if  they  are  exposed 
to  a  penalty  thereby,  it  will  not  be  so  construed.  Every  devise 
is  supposed  to  be  beneficial  for  the  devisee.  The  legislature 
meant  no  more  than  that  the  posthumous  child  should  receive  a 
child's  share,  such  as  the  testator  allotted  to  his  children  ;  not 
that  he  should  receive  what  the  testator  intended  for  collaterals. 
If  the  will  was  revoked,  as  to  all  the  children,  by  the  birth  of  a 
child,  then,  if  a  father  should  give  a  shilling  to  a  disobedient  child, 
and  after  that  should  have  another  child,  and  die,  the  diso- 
bedient child  would  get  a  full  share.  There  is  no  reason  for 
doubting  the  intention  of  the  testator  to  provide  liberally  for  these 
collateral  relations.  One  was  his  mother,  another  his  widowed 
sister. 

*  The  opinion  of  the  court  was  delivered  by 

ROGERS,  J. — The  principal  question  raised  by  the 
case  stated  is,  whether  Alexander,  who  is  the  posthumous  child  of 
James  Gray,  is  embraced  in  that  clause  of  the  will,  in  which  the 
testator  devises  "the  one,  full,  equal,  undivided  third  part  of  his 
estate,  real  and  personal  to  his  beloved  children,  who  may  be  liv- 
ing at  the  time  of  his  death."' 

It  seems  to  be  a  settled  rule  of  the  English  law,  that  there 
must  be  a  concurrence  of  a  subsequent  marriage,  and  a  subsequent 
child,  to  make  a  revocation  of  a  will ;  and  that  the  mere  subse- 
quent birth  of  children,  unaccompanied  by  other  circumstances, 
would  not  amount  to  a  presumed  revocation.  This  being  a  fixed 
rule  of  construction  ;  or,  at  least,  the  better  opinion  being  as 

VOL.  i. — 15 


219  SUPREME  COURT  [Dec.  Term, 

(M'Kpighte.  Read.) 

above  stated,  the  legislature  of  Pennsylvania,  as  early  as  the  4th 
of  February,  1748,  enacted,  "that  when  any  person  shall,  at  any 
time  hereafter,  make  his  last  will  and  testament,  and  afterwards 
marry,  or  have  a  child,  or  children,  not  named  in  any  such  will, 
and  die,  although  such  child,  or  children  be  born  after  the  death 
of  their  father,  every  such  person  so  far  as  shall  regard  the  wife 
after  married,  or  the  child  or  children  after  born,  shall  be  deemed 
and  considered  to  be  intestate  ;  and  such  wife,  child,  or  children, 
shall  be  entitled  to  like  purparts,  shares  and  dividends,  of  the 
estate,  real  and  personal,  of  the  deceased,  as  if  he  had  actually 
died  without  will."  This  act  has  been  altered  and  supplied  by 
the  act  of  the  19th  of  April,  1794.  It  is  there  enacted,  "that 
when  any  person,  from  and  after  the  passage  of  the  act,  shall 
make  his  last  will  and  testament,  and  afterwards  marry  and  have 
a  child,  or  children,  not  provided  for  in  any  such  will,  and  die, 
leaving  a  widow  and  child,  or  either  a  widow  or  child,  although 
such  child  or  children  be  born  after  the  death  of  their  father, 
every  such  person,  so  far  as  s'hall  regard  the  widoiv,  or  child,  or 
children,  shall  be  entitled  to  such  purparts,  shares,  and  dividends, 
of  the  estate,  real  and  personal,  of  the  deceased,  as  if  he  or  she 
had  actually  died  without  any  will." 

I  have  recited  the  two  acts,  in  some  measure  with  a  view  to  a 
variance,  which  appears  between  them,  which,  whether  essential 
or  otherwise,  may  be,  as  may  be  hereafter  determined.  The  acts 
vary  in  two  particulars.  The  act  of  1748,  speaks  of  children 
not  named  in  the  will ;  the  act  of  1794,  of  children  not  provided 
for  in  the  will ;  the  act  of  1794,  says,  if  he  shall  die,  "leaving  a 
widow,  or  child,  or  either  widow  or  child,"  a  clause  riot  contained 
in  the  act  of  1748.  But  whether  these  acts  essentially  differ 
from  each  other  or  not,  yet  it  is  certain  they  make  a  material 
alteration  in  the  common  law,  which  requires  both  marriage  and 
the  birth  of  a  child,  or  children,  to  effect  an  implied  revocation  of 
a  will. 

This,  then,  being  the  rule  of  the  English  law,  which  in  many 
cases  operated  hardly  on  after  born  children,  the  court  naturally 
r*9901  *  s*-ramed  the  construction  of  phrases  in  a  will,  so  as  to 
J  include  children  in  venire  sa  mere  ;  and  here,  it  has  been 
repeatedly  held,  that  the  words,  "  living  at  the.  death  of  the  tes- 
tator," although  not  the  natural  import  of  the  term,  will,  without 
more,  embrace  the  case  of  a  posthumous  child.  The  rule  results 
from  a  principle,  deduced  from  the  equitable  rule  of  the  civil 
law,  which  declares,  that  infants,  who  are,  as  yet,  in  their 
mother's  womb,  are  considered  as  already  brought  into*the  world, 
whenever  the  question  relates  to  any  thing  which  may  turn  to 
their  advantage.  The  rule  is  intended  entirely  for  the  benefit  of 
the  infant,  and  is  clearly  stated  by  Swinburne,  562,  pt.  4,  s.  14. 


1835.]  OF  PENNSYLVANIA.  220 

(M 'Knight  c.Jlead.) 

"When  the  child,"  (as  is  here  said,)  "  is  in  the  mother's  womb, 
at  such  time  as  the  testator  dieth,  if  he  would  in  this  case  know, 
whether  that  man  is  to  be  judged  to  have  died  without  issue,  we 
must  consider  whether  it  be  for  the  benefit  of  the  child,  that  the 
father  should  be  accounted  to  have  died  without  issue  or  not ;  for, 
howsoever  the  rule  be,  that  he  is  not  said  to  die  without  issue, 
whose  wife  is  with  child  at  his  death  ;  yet  that  rule  ought  to  take 
place  when  it  tendeth  to  the  benefit  of  the  child,  not  when  it 
tendeth  to  the  prejudice  of  the  child,  or  any  benefit  of  another. 
Wherefore,"  (says  the  writer,)  "  if  the  testator  make  thee  his 
executor,  or  give  thee  one  hundred  pounds  if  he  die  without  issue, 
after  which  will  was  made,  he  dieth,  leaving  his  wife  with  child ; 
in  this  case  he  is  reported  to  die  without  issue  ;  and  so  thou  art 
admitted  to  the  executorship,  and  mayest  receive  thy  legacy ; 
unless  it  be  more  beneficial  to  the  child  that  his  father  should 
have  been  reputed  to  have  died  without  issue  ;  for  then  thou  art 
excluded." 

The  principle  as  above  stated,  although  not  engrafted  into  the 
Common  Law  without  jealousy,  may  now  be  taken  as  firmly  es- 
tablished. The  rule  unquestionably  is,  that  an  infant  in  venire 
#a  mere,  shall  be  considered,  generally  speaking,  as  born  for  all 
purposes,  for  his  own  benefit.  Watk.  Law  of  Descents,  142; 
Doe  v.  Clark,  2  H.  Bl.  401 ;  1  Ves.  85 ;  Miller  v.  Turner,  3  Br. 
C.  Rep.  391;  Hall  v.  Chapman;  Smith  v.  Duffield,  5  Serg.  & 
Rawle,  40,  and  a  variety  of  other  cases,  which  I  am  not  permitted 
to  cite. 

The  inquiry  will  then  be,  is  it  in  the  interest  of  Alexander  to 
take  under  the  will  ?  and  it  is  clear  that  it  is  not.  By  the  act  of 
1794,  before  referred  to,  if  the  father  be  deemed  and  construed, 
to  have  died  intestate  so  far  as  regards  him,  he  will  be  entitled  to 
one-third  of  two-thirds  of  the  estate.  Now  the  case  stated,  sup- 
poses the  testator  to  have  died  worth  about  36,000  dollars,  we 
will  say  personal  estate,  for  even  if  part  were  real,  it  will  make  no 
material  diiference  on  the  result.  Of  this  sum,  Alexander's  share 
will  be  $8,000,  if  divided  on  the  principles  of  the  intestate  laws : 
whereas,  if  he  be  construed  to  be  a  devisee  under  the  will,  he  will 
be  entitled  to  4,000  dollars,  merely.  And,  besides,  this  construc- 
tion would  not  only  be  to  his  prejudice,  but  it  would  injure  his 
brother  and  sister,  who,  in  *the  view  we  have  taken  of  r*  901-1 
the  case,  will  be  entitled  to  $4,666,  instead  of  $4,000. 

A  reason  given  in  some  of  the  cases,  for  including  children,  in 
ventre  sa  mere,  in  the  words  "  living  at  the  death,"  is  from  the 
presumed  intention  of  the  testator,  arising  from  the  moral  obli- 
gation of  a  parent  to  provide  for  his  offspring,  a  reason  hardly 
applicable  to  a  case  like  the  present,  where  the  law  has  made  so 
ample  a  provision,  in  favor  of  the  posthumous  child.  It  would 


221  SUPREME  COURT  [Dec.  Term, 

(M 'Knight  v.  Read.) 

seem,  therefore,  that  the  rule  ought  to  be  in  this  state,  and  that 
an  infant  in  ventre  sa  mere,  shall  not  be  taken  to  be  embraced, 
prima  facie,  within  these  words  ;  and  particularly  when  it  works 
an  injury  to  the  other  children,  unless  it  can  be  affirmatively 
shown,  that  it  is  for  his  benefit,  or  there  may  be  other  circum- 
stances in  the  will,  which  clearly  indicate  such  to  be  the  intention 
of  the  testator.  But  be  this  as  it  may,  yet  the  rule  being  adopted 
on  a  presumed  intention  of  the  testator,  the  presumption,  like 
every  other  presumption,  may  be  rebutted  by  other  parts  of  the 
will,  aided,  as  it  may  be,  the  state  of  the  property,  and  the  situa- 
tion of  the  family.  5  Serg.  &  Rawle,  39.  Swift  v.  Duffield. 

It  has  been  conjectured,  and  not  without  a  show  of  reason, 
that  the  testator  thought  himself  richer  than  he  really  was.  From 
the  devise  to  his  collateral  relatives,  it  would  seem  that  he  sup- 
posed himself  worth  about  60,000  dollars.  This  estimate  of  the 
value  of  his  property,  wrould  leave  each  of  his  children  born, 
10,000  dollars,  a  sum,  it  may  be,  in  his  apprehension,  amply  suf- 
ficient for  their  education  and  commencement  in  life ;  but  if  he 
had  had  an  idea  that  his  wife  was  then  pregnant,  it  is  thought  he 
would  not  have  made  a  will  by  which  the  provision  for  his  chil- 
dren born,  would  be  materially  reduced.  But  there  are  other 
parts  of  the  will  which  are  entitled  to  weight  in  arriving  at  the 
intention  of  the  testator ;  which,  after  all,  is  the  governing  rule. 
Several  circumstances  have  been  relied  on  at  the  bar,  which  would 
seem  to  indicate  that  an  after  born  child  was  not  in  the  contem- 
plation of  the  testator,  at  the  time  he  made  his  will.  1  shall 
advert  to  but  one,  although  the  others  seem  to  throw  some  light 
on  the  transaction.  After  the  devise  to  his  children,  the  testator 
proceeds  :  "  And  it  is  my  desire  and  will,  that  the  share  or  part 
of  my  personal  estate,  herein  devised  to  my  children,  shall  be  put 
out  at  interest,  and  managed  by  my  executors  hereinafter  named, 
to  the  best  advantage,  until  my  said  children  shall  attain  to  full 
age,  or  be  married ;  the  income  and  interest  to  be  paid  over  to 
their  guardians  hereinafter  named ;  and  as  to  the  real  estate 
hereby  devised,  the  same  is  to  be  subject  to  the  power  of  sale 
hereinafter  directed ;  and  the  said  income  of  the  real  estate  herein 
devised  to  my  children,  so  long  as  it  shall  remain  unsold,  shall 
be  received  by  my  executors,  and  paid  over  to  the  guardians,  re- 
spectively, of  my  children,  until  they  severally  attain  full  age, 
or  marriage."  In  a  subsequent  part  of  the  will,  the  testator 
f*<>221  says»  "  Item,-  I  constitute  and  appoint  *  my  brother-in- 
J  law,  Joseph  Mosher,  Esq.,  of  Lancaster  county,  to  be 
guardian  of  the  person  and  estate  of  my  daughter  Isabella  ;  and 
my  friend  Frederick  V.  Krug,  of  this  city,  guardian  of  the  per- 
son and  estate,  of  my  son,  James."  This  clause,  would  seem  to 
be  somewhat  irreconcilable  with  the  idea,  that  the  testator  was 


1835.]  OF  PENNSYLVANIA.  222 

/ 

(M 'Knight  v.  Read.) 

aware  of  the  pregnancy  of  his  wife,  and  intended,  by  the  words 
"living  at  his  death,"  to  include  the  child  in  venire sa  mere;  for 
if  that  had  been  so,  it  is  probable  he  would  have  made  a  similar 
provision  in  reference  to  such  an  event.  The  conclusion  would 
then  be,  that  James  and  Isabella,  for  whom  guardians  are  ap- 
pointed, are  children  to  whom  the  interest  and  income  of  the  es- 
tate are  to  be  paid.  The  words  of  the  will  are,  "the  income  of 
the  real  estate,  herein  devised  to  my  children,  so  long  as  it  remains 
unsold,  is  to  be  paid  to  these  guardians,"  that  is,  to  the  guardians 
of  James  and  Isabella. 

Supposing,  then,  that  Alexander  does  not  take  under  the  will, 
the  next  question  is,  whether  this  works  a  total  revocation  of  the 
will,  or  is  a  revocation  of  the  will  pro  tanto.  The  legislature  ap- 
pears to  have  been  very  guarded,  in  the  terms  used  in  the  acts  of 
1748  and  1794.  The  marriage  or  birth  of  a  child  revokes  a  will, 
only  so  far  as  regards  the  widow,  or  child  or  children  after 
born.  These  acts,  provide,  that  such  child  or  children,  shall  be 
entitled  to  such  purparts,  shares  and  dividends  of  the  estate, 
real  and  personal,  of  the  deceased,  as  if  he  or  she  had  actually 
died  without  will.  I  cannot  believe  that  if  the  legislature  had 
intended  the  marriage  or  birth  of  a  child  should  amount  to  a 
total  revocation,  they  would  have  used  this  language.  It  was 
the  persons  only,  who  were  not  included  in  the  will,  that  they 
intended  to  protect,  leaving  the  will,  in  all  other  respects,  as  it 
had  been  made  by  the  testator.  It  is  not  to  be  disguised,  that 
this  will  sometimes  lead  to  difficult  and  perplexing  questions ;  and 
whether  a  total  revocation  would  not  have  been  a  better  pro- 
vision may  admit  of  doubt ;  but  the  legislature  not  having  thought 
proper  to  do  so,  it  is  not  for  us,  on  a  presumed  inconvenience,  to 
dispense  with  words  which  so  clearly  indicate  their  intention. 
And  this  would  appear  to  be  the  opinion  of  this  court,  in  Coates 
v.  Hughes,  3  Bin.  498. 

In  that  case,  it  was  ruled,  that  a  subsequent  marriage  and  birth 
of  a  child,  did  not  amount  to  a  total  revocation  of  a  will.  The 
appointment  of  an  executor,  with  power  to  sell,  was  held  good, 
notwithstanding  ;  upon  the  principle  that  it  amount  to  a  revoca- 
tion, pro  tanto  only. 

The  next  inquiry  will  be,  in  what  manner  is  Alexander's  share 
of  the  estate  to  be  deducted.  Alexander  is  entitled  to  one-half 
of  two-thirds  of  the  estate,  as  in  case  of  intestacy,  that  is  to  say, 
taking  the  estate  to  be  worth  $36,000,  the  widow  would  be  en- 
titled to  one-third,  viz:  $12,000,  and  the  remaining  two-thirds, 
viz  :  $24,000,  must  be  divided  by  three,  the  number  of  children, 
which  would  make  the  share  of  Alexander  $8,000.  This  $8,000, 
we  are  of  opinion,  should  in  the  first  place,  be  deducted  from  the 


223  SUPREME  COURT  [Dec.  Term, 

(Heppard  «.  Beylard.) 

r*O9Qi  whole  amount  of  the  estate;  *and  the  remainder,  viz: 
$28,000,  should  be  divided  into  three  equal  portions ; 
one-third  to  the  widow,  one-third  to  the  two  children,  Isabella 
and  James,  and  the  remaining  third  to  the  collateral  relativea 
named  in  the  will.  We  conceive  that  the  portion  allotted  by  the 
act  to  Alexander,  must  like  a  debt,  be  first  paid,  and  the  residue 
only  remains,  to  answer  the  exigencies  of  the  will.  We  are  sen- 
sible that  this  will  sometimes  interfere  with  the  intention  of  the 
testator,  but  this  is  a  consequence  which  cannot  be  avoided, 
without  dispensing  with  what  the  legislature  have  thought  of 
paramount  importance ;  to  prevent  the  disinherison  of  after  bom 
children. 

From  the  case  stated,  it  will  appear  that  there  will  be  a  defi- 
ciency of  assets  to  pay  the  legacies  contemplated  in  the  third 
class.  I  see  nothing  in  the  will  to  prevent  the  operation  of  the 
rule,  that  the  abatement  must  be  in  equal  proportions.  The  gen- 
eral rule  is,  that  among  legatees,  who  are  volunteers,  in  their 
nature  general,  there  is  no  preference  of  payment;  they  shall  all 
abate  together,  and  proportionably,  in  case  of  a  deficiency  of 
assets,  to  pay  them  all. 

Since  the  argument  of  the  cause,  it  has  been  stated  to  us  by 
the  counsel,  that  it  has  been  ascertained  that  the  testator  was 
aware  of  the  pregnancy  of 'his  wife.  This  circumstance  makes  no 
alteration  in  the  opinion  of  the  court. 

Judgment  for  the  plaintinff. 

Cited  by  Counsel,  6  Casey,  174  ;  11  Wright,  147. 
Cited  by  the  Court,  10  Casey,  487. 
Followed,  3  Wright,  119. 


[PHILADELPHIA,  FEBIHJAKY  1,  1836.  ] 
HEPPARD  against  BEYLARD. 

IN    ERROR. 

A.  the  holder  of  a  promissory  note,  a  short  time  before  the  failure  of  the 
drawer,  and  in  anticipation  of  that  event,  sold  it  to  B.  who  was  indebted 
to  the  drawer.  On  the  failure  of  the  drawer,  his  assignees  brought  an 
action  against  B.,  who  set  off  the  promissory  note  and  obtained  a  verdict 
and  judgment.  Held,  that  A.  had  a  right  to  dispose  of  the  note  to  B., 
and  that  the  assignees  had  no  cause  of  action  against  him. 

WRIT  of  Error  to  the  District  Court  for  the  City  and  County 
of  Philadelphia,  to  remove  the  record  of  an  action  brought  in 


1835.]  OF  PENNSYLVANIA.  •  223 

(Heppard  v.  Beylard.) 

that  court  by  Hezekiah  Heppard,  assignee  of  Joseph  M.  Heppard, 
and  William  B.  Heppard,  against  John  Beylard. 

The  circumstances  under  which  the  suit  was  brought,  were 
these  : 

Joseph  M.  Heppard,  and  William  B.  Heppard,  were  indebted 
to  the  *  defendant  on  a  promissory  note,  dated  April  15,  r*  994-1 
1823,  at  six  months,  in  the  sum  of  $357  82 ;  which  L  ^ 
note  fell  due  on  the  18th  day  of  October,  1823. 

Nathaniel  Richardson,  of  Pittsburg,  was  indebted  to  the  said 
Joseph  M.  and  William  B.  Heppard,  in  the  sum  of  $295  92,  on 
a  book  account ;  with  which  fact  defendant  was  acquainted  before 
the  transfer  of  the  note  by  him,  as  hereinafter  stated. 

The  said  J.  M.  and  W.  B.  Heppard,  on  the  23d  day  of  August, 
1823,  became  insolvent;  and  on  the  same  day  made  an  assign- 
ment of  their  estate  to  the  plaintiff,  in  trust,  for  the  benefit  of 
their  creditors.  Notice  of  the  assignment  was  given  by  publi- 
cation in  the  Philadelphia  Gazette,  on  the  25th  day  of  August, 
1823. 

The  defendant  had,  previously  to  the  20th  of  August,  1823, 
obtained  a  discount  of  the  note  of  the  15th  April,  at  the  banking- 
house  of  Stephen  Girard,  and  received  the  money  therefor. 

On  the  20th  of  August,  1823,  the  defendant  in  Philadelphia, 
wrote  to  his  agent,  Mr.  Dubarry,  in  Prttsburg,  informing  him  that 
he  held  the  note  of  the  15th  April,  and  other  notes  of  the  Hep- 
pards,  and  expressing  his  fear  lest  they  should  become  bankrupt, 
and  instructing  him  to  barter  said  note  for  goods.  This  letter 
Dubarry  received  on  the  25th  of  August. 

On  the  26th  of  August,  1823,  Dubarry,  in  Pittsburg,  bartered 
the  note  to  Richardson  for  goods,  (bees-wax,  &c.)  to  the  amount  of 
$295  92,  (the  amount  of  Richardson's  debt  to  the  Heppards,) 
and  by  letter  dated  at  Pittsburg,  on  the  27th  day  of  August,  1823, 
informed  the  defendant  of  the  transaction. 

The  defendant  on  the  2d  of  September,  1823,  took  up  the  note 
from  Girard's  Bank,  and  transmitted  it  on  the  same  day  to  Du- 
barry, who,  after  its  receipt,  delivered  it  to  Richardson.  Rich- 
ardson had,  previously,  by  letter  dated  at  Pittsburg,  about  the 
27th  of  August,  informed  the  Heppards  of  the  transfer  of  the 
note  to  him  ;  and  he  received  no  notice  from  any  source,  of  the 
assignment  made  by  them,  until  some  weeks  after  the  barter  with 
Dubarry,  and  the  receipt  of  the  note  from  him. 

On  the  8th  of  April,  1824,  the  plaintiff,  as  assignee  of  the 
Heppards,  commenced  a  suit  in  the  court  of  Common  Pleas  of 
Alleghany  county,  against  Richardson,  to  recover  the  amount  of 
the  said  book  account.  Richardson  pleaded  in  that  suit,  among 
other  things,  a  set-off;  and  on  the  trial,  gave  in  evidence  Hep- 
pard's  note  of  the  15th  of  April,  1823,  transferred  to  him  ;  the 


224  SUPREME  COURT  [Dec.  Term, 

(Heppard  t>.  Beylard.) 

transfer  of  which  was  antedated  by  Dubarry  to  correspond  with 
the  date  of  the  letter,  in  which  defendant  had  authorized  him  to 
barter  it,  viz.:  August  20th,  1823. 

A  verdict  was  rendered  in  the  said  suit,  in  favor  of  Richard- 
son, for  the  sum  of  $71  13  ;  the  set-off  of  the  said  note  being 
allowed  by  the  court  and  jury.  Judgment  was  rendered  on 
that  verdict,  and  no  proceedings  to  reverse  it  were  taken  by  the 
plaintiff. 

r*22*Vl  *  ^e  pla*ntiff  ^en  brought  this  action  against  Bey- 
lard,  to  recover  the  sum  of  money,  (viz.  the  amount  of 
the  said  note,  $327  82  and  interest,)  lost  to  them  by  the  judg- 
ment in  Pittsburg,  through  the  proceedings  of  Beylard,  which  the 
plaintiff  alleged  to  be  fraudulent  in  law  ;  and  he  claimed  to  re- 
cover either  the  whole  amount,  or  at  least  the  amount  of  Richard- 
son's debt  to  the  Heppards. 

The  judge  below,  charged  upon  the  above  facts,  that  the  plain- 
tiff could  not  recover  ;  that  the  conduct  of  the  defendant  was  per- 
fectly fair  and  legal  ;  that  he  had  the  right  to  do  what  he  did  ; 
that  there  was  no  principle  of  law  to  support  the  plaintiff's  action  ; 
and  that  these  matters  should  have  been  relied  upon  in  the  suit 
between  the  plaintiff  and  Richardson. 

A  verdict  and  judgment  were  rendered  for  the  defendant.  The 
plaintiff  took  a  bill  of  exceptions  to  the  charge  of  the  judge,  and 
a  writ  of  error,  and  assigned  the  following  errors. 

"1.  The  court  below  erred,  in  charging  the  jury  that  there 
was  no  principle  in  law,  upon  which  the  action  of  the  plaintiff 
could  be  supported. 

2.  The  court  erred,  in  saying  that  the  defendant  had  a  right  to 
offer  in  the  market  the  note  of  the  '15th  of  April,  1823,  before  he 
took  it  up  from  Girard's  Bank,  and  to  sell  it  on  the  20th  or  26th 
of  August,  and  that  in  so  doing,  he,  the  defendant,  had  nothing  to 
do  with  Heppard,  or  with  transactions  between  Richardson  and 
the  Heppards,  and  was  not  to  be  affected  by  them. 

3.  The  court  erred  in  saying,  that  there  was  nothing  in  the 
defendant's  conduct,  from  beginning  to  end,  which  the  law  pro- 
hibited. 

4.  The  court  erred,  also,  in  saying,  that  all  in  this  cause  had 
been  previously  heard  and  tried  at  Pittsburg." 

Mr.  G.  M.  Wliarton,  and  D.  P.  Brown,  for  the  plaintiff  in 
error,  cited  Itiehter  v.  Selin,  (8  Serg.  &  R.  425.) 

Mr.  M'Call  (with  whom  was  Mr.  Brashears^  referred  to 
Stouffer  v.  Latxhaw,  (2  Watts,  165.) 

The  opinion  of  the  court  was  delivered  by 


1835.]  OF  PENNSYLVANIA.  225 

(Heppardfl.  Beylard.) 

GIBSOX,  C.  J. — The  argument  for  the  plaintiff,  is  founded  on 
the  fallacious  assumption,  that  in  gaining  a  legal  advantage  over 
the  other  creditors,  the  defendant  was  guilty  of  a  fraud ;  which, 
in  turn,  is  founded  on  an  obiter  dictum  of  the  judge  who  deliv- 
ered the  opinion  of  the  court  in  Richter  v.  Selin.  I  am  unable 
to  perceive  how  a  measure  to  obtain  such  an  advantage,  when  un- 
attended with  misrepresentation  or  an  abuse  of  confidence,  can 
be  inconsistent  Avith  the  strictest  honor.  The  creditor  may 
know,  that  the  debtor  intends  to  give  a  preference  to  others; 
and  what  can  be  the  harm  *of  an  attempt  to  prefer  him-  r*  99(3-1 
self  ?  It  is  to  be  remembered,  that  the  parties  are  deal-  L 
ing  with  legal  rights,  and  not  principles  of  generosity  in  sharing 
a  loss.  Placed  in  a  condition  of  common  peril,  which  imposes 
on  each  the  necessity  of  struggling  for  his  own  preservation, 
good  faith  requires  no  more  of  them  that  that  each  should  not 
deceive  the  other  to  his  prejudice.  Whom  did  the  defendant 
deceive  ?  Not  the  endorsee  of  the  note ;  for  he  recovered  it,  or, 
what  is  the  same  thing,  obtained  a  credit  for  the  amount  by  defal- 
cation. Not  the  assignees  or  any  of  the  creditors ;  for  he  had 
no  transaction  with  them.  By  obtaining  on  the  contract  of  en- 
dorsement, more  for  his  note  than  he  could  have  made  of  it  in 
his  own  hands,  he  deceived  no  one  who  placed  confidence  in  him, 
or  had  a  right  to  prescribe  to  him  any  particular  course  of  con- 
duct; and  I  am  unable  to  understand  how  a  creditor  who  has 
thus  obtained  more  than  his  proportion  from  an  insolvent  fund, 
may  be  compelled  to  restore  it.  In  all  cases  of  the  stamp,  a  legal 
advantage  is  a  conscionable  advantage.  Thus  it  was  held  by  this 
court,  in  Carson  v.  M'Farland,  2  Rawle,  118,  that  a  creditor 
who  has  been  paid  more  than  his  proportion,  by  mistake  of  the 
executor,  can  not  be  compelled  to  refund  it.  Money  can  be  fol- 
lowed only  when  it  has  been  received  mala  fide;  whence  results 
a  clear  and  indisputable  rule  of  law,  that  when  paid  by  mistake 
in  discharge  of  a  just  debt,  it  may  not  be  recovered  back.  Now, 
to  be  successful,  what  would  be  the  gist  of  an  action  here?  Not 
deceit;  for  the  defendant  deceived  no  one.  Not  the  gain  of  a 
legal  advantage ;  which,  as  the  law  allows  it,  surely  cannot  be 
unlawful.  It  must  necessarily  be  the  receipt  of  money  to  the 
plaintiff's  use,  for  the  excess  beyond  what  would  have  been  the 
defendant's  dividend.  But  the  money  had  of  the  endorsee  was 
not  that  which  was  coming  to  the  estate  of  the  insolvent ;  it  was 
the  price  of  a  chose  in  action,  parted  with  on  terms  which  the  law 
did  not  prohibit  between  the  parties  ;  and  which  did  not  create  a 
trust  for  the  plaintiff:  and  be  the  fancied  equity  of  the  case  what 
it  may,  there  is  not  such  privity  between  the  parties  as  will  sup- 
port an  action. 

Judgment  affirmed. 

Cited  by  Counsel,  6  Watts,  433. 


227  SUPREME  COURT  [Dec.  Term, 

[*227]  [*PHILADKLPHIA,  FEBUARY  1,  1836.] 

GASPER  and  Others  against  DONALDSON  and  Another. 

IN  ERROR. 

In  ejectment  against  one  claiming  under  a  conveyance  made  by  the  ances- 
tor of  the  plaintiffs,  which  they  sought  to  set  aside,  on  the  ground  of  in- 
adequacy of  consideration,  and  imbecility  of  the  grantor ;  the  parties 
standing  also  in  the  relation  of  mortgagor  and  mortgagee  ;  it  was  held, 
that  a  will  made  by  the  grantor,  three  years  before  the  date  of  the  deed, 
when  the  parties  stood  in  the  same  relation ;  in  which  he  devised  the 
same  property  to  the  grantee  in  the  deed,  was  admissible  in  evidence,  to 
show  the  intentions  and  disposition  of  the  grantor  towards  the  grantee. 

WRIT  of  Error  to  the  District  Court  for  the  City  and  County  of 
Philadelphia. 

An  action  of  ejectment  was  brought  in  that  court  by  Lewis 
Gasper,  and  Mary  his  wife,  in  right  of  the  said  Mary,  Sarah 
Porter,  Ann  Porter,  Rosina  Porter,  Elizabeth  Porter,  \Iary  Ann 
Porter,  Hannah  Porter,  Joanna  Porter,  and  Emma  Porter,  against 
John  Donaldson  and  William  Baker,  to  recover  a  house  and  lot  of 
ground  situate  on  the  east  side  of  Delaware  Sixth  street,  in  the 
City  of  Philadelphia. 

The  plaintiffs  claimed,  as  heirs  at  law  of  one  Robert  Venable, 
who  was  born  on  the  22d  of  April,  1730,  and  died,  seized  of  the 
premises,  on  the  19th  of  Decmber,  1831. 

The  defendants  claimed,  under  a  conveyance  of  the  premises 
from  Robert  Venable  to  John  Donaldson,  in  fee,  dated  December 
1st,  1829,  acknowledged  the  next  day,  and  recorded  on  the  8th 
of  the  same  month.  John  Donaldson,  on  the  27th  of  March, 
1832,  conveyed  the  lot  in  question  to  William  G.  Baker,  in  fee, 
reserving  an  annual  ground  rent. 

It  appeared  in  evidence  on  the  trial,  that  Venable  had  been  a 
slave  in  the  family  of  the  grandfather  of  the  defendant,  Donald- 
son, by  whom  he  was  manumitted.  He  purchased  the  lot  in 
question,  and  borrowed  $200  on  mortgage  from  John  Donaldson, 
the  father  of  the  defendant.  The  consideration  mentioned  in  the 
deed  was  $500.  The  allegation  on  the  part  of  the  plaintiffs  was, 
that  the  consideration  was  inadequate,  and  that  the  grantor  was 
incapable  at  the  time. 

The  defendants,  having  given  their  title  in  evidence,  offered  a 
paper  purporting  to  be  the  will  of  the  said  Robert  Venable,  dated 
the  13th  of  September,  1826,  containing  a  devise  of  the  lot  in 
question  to  John  Donaldson,  the  father  of  the  defendant ;  having 
proved  by  the  person  who  drew  the  will,  that  Venable  declared 
that  he  was  considerably  indebted  to  Mr.  Donaldson,  and  that  he 
wished  to  show  his  gratitude  to  him. 


1835.]  OF  PENNSYLVANIA.  228 

(Gasper -D.  Donaldson.) 

*  The  plaintiff's  counsel  objected  to  the  admission  of 
this  paper  in  evidence ;  but  the  court  admitted  it,  and  a 
bill  of  exceptions  was  taken  to  their  opinion,  and  the  record  re- 
moved to  this  court. 

The  only  error  assigned,  was  the  admission  of  the  paper  writ- 
ing, purporting  to  be  the  will  of  Robert  Venable. 

Mr.  G.  M.  Whatton  and  Mr.  F.  W.  Hubbell,  for  the  plain- 
tiffs in  error. 

1.  The  will  of  Robert  Venable  ought  not  to   have  been  ad- 
mitted in  evidence.     The  defendant  relied  upon  a  deed  expressed 
to  be  for  a  valuable  consideration ;  Avhich,  however,  was  clearly 
shown  to  be  inadequate.     The  issue  was  upon  the  consideration, 
and  the  question  of  the  motives  or  intentions  of  the  grantor  was 
irrelevant.     The  will  was  never  proved  ;  but,  if  proved,  it  would 
have  been  inoperative,  since  it  was  revoked  by  the  deed  set  up 
on  the  other  side.     It  was  at   best,  only  a  delaration  of   the 
grantor,  which  was  not  admissible.     In  support  of  these  positions, 
they  cited  Rife  v.  G-albreath  (1  Penn.  Rep.  204;)  Innes  v. 
Campbell,  (1  Rawle,  374 ;)  Brown  v.  Downing,  (4  Serg.  &  R. 
498  ;)  Wolverton  v.  Hart,  (7  Serg.  &  R.  273  ;)  Edgar  v.  Boies, 
(11  Serg.  &  R.  445;)  Kendall  v.  Lee,  (2  Penn.  Rep.  488;) 
Mildmay's  case,  (10  Rep.  176,  a.;)  Peacock  v.  Mort,  (1  Ves. 
128 ;)    Wilt  v.  Franklin,  (1  Binn.  518  ;)  Hayden  v.  Mentzer, 
(10  Serg.  &  R.  329;)  1  Roberts  on  Wills,  2l9,  226;  Lawson 
v.  Morrison,  (2  Dall.  289 ;)  Sparrow  v.  Hardcastle,  (3  Atk. 
803  ;)  Ambler,  215;  7  Vesey,  393;  8  Ves.  233  ;  6  Ves.  205; 
Hawes  v.  Wiatt,   (2  Cox's  0.  C.  263  ;)  Attorney  General  v. 
Vigor,  (8  Ves.  283  ;)  House  v.  Hull,  2  Binn.  511. 

2.  At  the  date  of  the  will,  and  at  the  date  of  the  deed,  the 
parties  stood  in  the  relation  of  mortgagor  and  mortgagee ;  and  it 
is  said  in  the  cases,  that  conveyances  shall  not  be  admitted  be- 
tween such  parties.      Webb  v.  Rourke,  (2  Sch.  &  Lefroy,  661 ;) 
Davoue  v.  Fanning,  (2  Johns.  Ch.  Rep.  252  ;)  Seagrove  v.  Qur- 
wen,  (1  Beatty,  157,  cited  in  Shelford  on  Lunatics,  318.) 

Mr.  Kittera,  contra,  was  stopped  by  the  court. 

PER  CURIAM.  The  imputation  of  fraud  rested  mainly -on  the 
ground  of  inadequacy  of  consideration.  Was  not  the  will,  not 
only  competent,  but  powerful  evidence  to  repel  it,  by  showing 
that  the  grantor  meant  to  stipulate,  not  for  an  outside  price,  but 
a  living ;  and  that,  at  a  preceding  period,  when  there  was  no  im- 
putation of  imbecility  on  the  one  side,  or  artifice  on  the  other, 
he  avowed  an  intention  to  give  the  estate  at  his  death  to  the  de- 
tendant,  as  a  gratuity  ?  In  this  aspect,  the  competency  of  the 


228  SUPREME  COURT  [Dec.  Term, 

(St.  Mary's  Church  c.  Miles.) 

will,  whether  revoked  or  not,  or  otherwise  avoided,  as  a  convey- 
ance, was  unquestionable. 


See  11  Harris,  119. 


Judgment  affirmed. 


[*229]  [*PHII,ADELPHIA,  FEBKUAKY  3,  1836.] 

THE  TRUSTEES  OF  ST.  MARY'S  CHURCH  against  MILES. 

IN   ERROR. 

1.  Mere  lapse  of  time,  without  demand  of  payment,  is  not  sufficient  to 
raise  a  presumption  that  a  gr&und  rent  created  by  a  valid  deed,  has  been 
released,  or  otherwise  extinguished. 

2.  The  lapse  of  twenty  years  without  demand  of  payment,  is  evidence  from 
which  a  jury  may  presume  payment  of  the  arrears  of  the  ground  rent ; 
but  such  presumption  may  be  repelled  by  circumstances. 

3.  A  testator  devised  a  small  annual  ground  rent  to  a  servant  for  life  ;  his 
executors  not  being  aware  of  the  testator  owning  such  a  ground  rent,  or 
not  finding  the  person  by  whom  it  was  payable,  paid  the  amount  to  the 
devisee  from  time  to  time,  as  an  annuity ;  Held,  that  these  payments 
were  not  to  be  considered  as  a  satisfaction  of  the  ground  rent  pro  tanto  ; 
but  that  the  devisee  was  entitled  to  recover  the  arrears. 

WRIT  of  Error  to  the  District  Court  for  the  City  and  County  of 
Philadelphia. 

Robert  Miles  brought  an  action  of  covenant  in  that  court  to  De- 
cember Term,  1829,  against  the  trustees  of  St.  Mary's  church,  to 
recover  the  arrears  of  a  ground  rent  of  three  pounds  per  aunum, 
issuing  out  of  and  charged  upon  a  lot  of  ground  situate  on  the 
south  side  of  Plumb  street,  in  the  district  of  Southwark,  and 
county  of  Philadelphia. 

On  the  trial  in  the  court  below,  the  jury  found  a  special  ver- 
dict, setting  forth  the  following  facts,  viz.  : 

That  John  Palmer  and  wife,  by  indenture  dated  the  23d  day  of 
July,  1761,  granted  a  lot  of  ground  upon  which  the  said  rent  is 
charged  to  Joseph  Wright,  in  fee,  reserving  the  said  ground  rent, 
payable  on  the  23d  day  of  July,  yearly. 

That  the  said  John  Palmer  and  wife,  by  indenture  dated  the 
1st  day  of  March,  1790,  granted  and  assigned  the  said  rent 
charge  to  Thomas  Shoemaker. 

That  the  said  Thomas  Shoemaker,  by  his  last  will  and  testa- 
ment, dated  the  5th  day  of  March,  1795,  and  proved  on  the  10th 
day  of  December,  1799,  devised  the  said  rent  charge  to  the 
plaintiff  above  named,  during  the  term  of  his  natural  life,  pro- 


1835.]  OF  PENNSYLVANIA.  229 

(St.  Mary's  Church  v.  Miles.) 

vided  he  continued  in  his,  the  said  Thomas  Shoemaker's  service, 
until  the  decease  of  the  said  Thomas  Shoemaker:,  and  that  the 
said  plaintiff  did  so  continue  in  the  service  of  the  said  Thomas 
Shoemaker,  until  his  decease. 

That  William  Dewees,  Esq.,  sheriff  of  the  city  and  county  of 
Philadelphia,  by  indenture  dated  the  6th  day  of  July,  1775,  con- 
veyed the  premises  to  Peter  Gill,  in  fee,  subject  to  the  payment 
of  said  rent  charge. 

*  That  the  said  Peter  Gill,  by  his  last  will  and  testa- 
ment  dated  the  23d  day  of  December,  1797,  devised 
the  premises  to  the  above  named  defendants,  and  the  said  defend- 
ants have  been  in  possession  of  the  same,  until  the  commencement 
of  this  suit. 

And  the  jury  further  found,  that  Jacob  Shoemaker  and 
Thomas  Shoemaker  were  appointed  the  executors  of  the  last 
will  and  testament  of  Thomas  Shoemaker,  deceased,  before 
referred  to,  and  that  Jacob  Shoemaker  took  upon  himself  the 
exclusive  management  of  the  estate,  until  the  year  1822,  when 
he  died. 

That  the  said  Jacob  Shoemaker  paid  the  said  plaintiff  several 
sums  of  money  at  sundry  times  as  appears  from  receipts,  of 
which  the  following  are  copies: 

"Received  Dec.  9,  1801,  of  Jacob  Shoemaker,  executor  of  the 
estate  of  Thomas  Shoemaker,  deceased,  eight  dollars  in  full  for 
one  year's  annuity  by  virtue  of  the  last  will  of  Thomas  Shoe- 
maker, deceased." 

"  Received  1st  mo.  10,  1803,  of  Jacob  Shoemaker,  eight  dol- 
lars in  full,  for  my  yearly  annuity  from  Thomas  Shoemaker." 

"Received  3d  mo.  31,  1803,  of  Jacob  Shoemaker,  one  dollar, 
on  account  of  my  yearly  annuity,  from  the  estate  of  Thomas 
Shoemaker,  deceased." 

"Received  March  12,  1812,  of  Jacob  Shoemaker,  ten  dollars 
for  the  annuity  left  me  by  Thomas  Shoemaker,  deceased." 

"Received  Feb.  3,  1813,  of  Jacob  Shoemaker,  ten  dollars  on 
account  of  my  annuity." 

And  the  jury  further  found  that  after  the  death  of  the  said 
Jacob  Shoemaker,  Thomas  Shoemaker,  as  surviving  executor,  took 
upon  himself  the  management  of  the  estate,  and  paid  to  the  plain- 
tiff three  pounds  per  annum,  until  the  present  suit  was  brought,  as 
will  more  fully  appear  from  the  following  receipts : 

"Received,  December  7,  1822,  of  Thomas  Shoemaker,  ten  dol- 
lars, on  account  of  my  annuity  left  by  his  uncle,  Thomas  Shoe- 
maker, deceased." 

"Received  October  2,  1823,  of  Thomas  Shoemaker,  executor 
of  the  estate  of  Thomas  Shoemaker,  deceased,  eight  dollars, 
being  the  amount  of  my  annuity  left  by  deceased." 


230  SUPREME  COURT  [Dec.  Term,, 

(St.  Mary's  Church  t>.  Miles.) 

"  Received  September  23,  1824,  of  Thomas  Shoemaker,  eight 
dollars,  for  one  year's  legacy,  left  me  by  Thomas  Shoemaker, 
deceased,  due  1st  of  October  next." 

"Received  January  17,  1826,  of  Thomas  Shoemaker,  ten  dol- 
lars, on  account  of  my  legacy,  left  by  his  uncle,  Thomas  Shoe- 
maker, deceased,  due  October  next,  including  two  dollars  in  ad- 
vance of  the  next  payment." 

"Received  llth  October,  1826,  of  Thomas  Shoemaker,  ten 
dollars,  which  is  for  one  year's  annuity,  left  me  by  his  uncle, 
Thomas  Shoemaker,  deceased,  and  in  advance,  not  being  due 
until  October  *  next,  he  having  paid  me  two  dollars  in 
last  year  as  per  receipt  January,  1826." 

"Received  October  15th,  1826,  of  Thomas  Shoemaker,  eight 
dollars  for  amount  of  one  year's  annuity  left  John  Miles,  by  his 
uncle  Thomas  Shoemaker,  deceased,  which  will  be  due  in  October, 
1828;  this  being  in  advance." 

"  Received  September  25,  1828,  of  Thomas  Shoemaker,  eight 
dollars  for  account  of  one  year's  annuity  left  me  by  his  uncle, 
Thomas  Shoemaker,  deceased,  which  will  be  due  in  October, 
1829,  this  being  made  in  advance." 

And  the  jury  further  found,  that  the  said  Thomas  Shoemaker, 
executor  as  aforesaid,  charged  the  said  sums  so  paid  to  the  plain- 
tiff, to  the  estate  of  Thomas  Shoemaker,  deceased ;  that  the  said 
Thomas  has  misconceived  the  will,  and  that  said  payments  were 
made  by  him,  under  the  impression  that  the  plaintiff  was  entitled 
to  an  annuity  of  three  pounds  per  annum,  under  the  will  of 
Thomas  Shoemaker,  deceased,  and  that  Thomas  Shoemaker,  ex- 
ecutor as  aforesaid,  has  never  settled  his  administration  accounts  ; 
that  the  executors  of  Thomas  Shoemaker,  deceased,  did  not  find 
the  deed  for  the  said  ground  rent  among  the  deeds  of  the  testator, 
and  that  all  the  other  title  papers  for  his  property  were  found  by 
his  executors ;  that  the  executors  did  not  know  where  the  prop- 
erty was  situate  on  which  the  rent  was  charged,  though  efforts 
were  made  by  them  to  ascertain  where  the  same  was  situate ;  nor 
did  the  surviving  executor  know  where  the  same  was  situate, 
until  informed  by  the  counsel  of  the  defendants,  a  short  time  be- 
fore this  suit  was  brought,  and  that  no  demand  was  made  by  the 
executors  of  Thomas  Shoemaker  on  Peter  Gill,  or  upon  the  de- 
fendants in  this  suit,  for  the  payment  of  the  said  ground  rent, 
until  about  the  time  this  suit  was  instituted. 

Upon  this  special  verdict  the  District  Court  rendered  judgment 
for  th  eplaintitf;  whereupon,  the  defendants  sued  out  this  writ  of 
error;  and,  upon  the  removal  of  the  record,  assigned  the  follow- 
ing errors,  viz : 

"1.  That  judgment  ought  to  have  been  given  for  the  defend- 
ants, by  the  court  below ; 


1835.]  OF  PENNSYLVANIA.  231 

(St.  Mary's  Church  «.  Miles.) 

1.  Because  the  rent  charge  was  by  presumption  of  law  extin- 
guished or  relinquished. 

2.  Because  there  was  enough  to  authorize  a  presumption  in 
fact  of  the  extinguishment  of  the  rent  charge. 

2.  That  it  was  a  har  to  the  plaintiff's- recovery  that  payment 
had  been  made  to  him  of  all  that  he  was  entitled  to  receive  under 
the  will  of  Thomas  Shoemaker." 

Mr.  C.  Ingersoll,  for  the  plaintiffs  in  error.  The  plaintiff  be- 
low claimed  the  arrears  of  ground  rent  for  about  thirty  years. 
The*  special  verdict  does  not  state  the  fact  distinctly,  r*oqo-i 
but  it  is  agreed  that  the  ground  rent  has  not  been  paid  L 
since  the  death  of  Thomas  Shoemaker,  in  1799,  and  that  no  de- 
mand was  made  for  it  until  the  commencement  of  the  suit  in  the 
court  below. 

1.  The  lapse  of  time  raises  a  presumption  that  the  rent  has 
been  extinguished.     Matthews  on  Presumptive  Evidence,  p.  6  ; 
Hillary  v.  Waller,  (12  Ves.  251 ;)  Prevost  v.  Grratz,  (6  Wheaton, 
481 ;)  1  Powell  on  Mortgages,  396,  399  ;   Cope  v.  Humphreys, 
(14  Serg.  &  Rawle,  19 ;)  Eldredge  v.  Natt,  (Cowper,  215 ;) 
Arden  v.  Arden,  (1  Johns.  Ch.  R.  313  ;)  Henderson  v.  Lewis, 
(9  Serg.  &  Rawle,  379  ;)3f«  Clean  v.  Findley,  (2  Penn.  Rep. 
97  ;)  Deman  v.  Leckart,  (1  Penn.  Rep.  419  ;)  Blanchard  on 
Limitations,  56  ;  Livingston  v.  Livingston,  (4  Johns.  Ch.  Rep. 
294 ;)  Tenbroeck  v.  Livingston,  (1  Johns.  Ch.  Rep.  357  ;)  1 
Chitty's  Gen.  Practice,  756.     [ROGERS,  J.     How  can  you  con- 
tend that  the  rent  was  extinguished,  when  there  is  nothing  on  the 
record  to  support  it  ?     The  jury  have  not  found  so.]     The  jury 
have  found  facts  from  which  the   presumption  arises.     In  Ten- 
broeck v.  Livingston,  Chancellor  Kent  speaks  of  a  presumption 
arising  from  the  want  of  evidence  of  the  rent  having  been  de- 
manded or  paid.     In  Palmer  v.  Whittenhall,  (1  Cases  in  Chan- 
cery, 184 ;)  the  defendant  demurred  to  a  bill  claiming  rent,  that 
he  and  those  under  whom  he  claimed,  had  enjoyed  the  land  for 
thirty  years  without  any  demand  of  rent,  and  that  being  so  long 
unpaid,  it  was  presumed  to  be  extinguished  ;  and  the  demurrer 
was  allowed  by  the  Lord  Keeper.     This  case  was  cited  and  ap- 
proved of  by  Chancellor  Kent, in  Livingston  v.  Livingston;  Som- 
ervill  v.  Holliday,  (1  Watts,  507.) 

2.  It  appears  by  the  special  verdict,  that  the  plaintiff  was  paid 
in  full.     It  is  no  matter  by  whom.     The  fact  of  payment  is 
enough  to  prevent  his  recovering  from  the  defendants^ 

Mr.  Perkins,  and  Mr.  Chester,  for  the  defendant  in  error. 
1.  The  case  of  a  bond — payment  of  which  will  be  presumed 
after  twenty  years  without  demand,  &c. — is  not  like  that  of  a 


232  SUPREME  COURT  [Dec.  Term, 

(St.  Mary's  Church  v.  Miles.) 

ground  rent,  or  other  accruing  payment,  the  principal  of  which 
is  not  required  to  be  paid.  The  recording  acts  also  place  the 
case  of  rents  on  a  different  footing.  If  there  had  been  a  release, 
it  was  incumbent  upon  the  grantor  to  place  it  on  record.  In 
1790,  Shoemaker  became  the  purchaser  for  a  valuable  consider- 
ation. The  present  plaintiff,  Miles,  is  also  to  be  considered  a  pur- 
chaser in  1799.  In  Jackson  v.  Davis,  (5  Cowen,  123  ;)  the 
court  say  that  the  presumption  alleged  is  in  the  nature  of  evi- 
dence ;  and  mere  length  of  time  will  never  raise  such  presumption. 
•It  must  arise  from  some  facts  or  circumstances  which  took  place 
within  that  time.  Here,  it  appears  that  Miles  was  an  old  man, 
ignorant,  and  had  been  a  servant  of  Shoemaker.  Brydges  v. 
The  Duke  of  Chandos,  (2  Burr.,  1065  ;)  Runnington,  276  ;  3d 
Starkie,  1250  ;  6  Rep.  38  ;  2  Bac.  Abr.  639  ;  Standish  v.  Brad- 
r*noo-i  ley,  (2  Atk.  177.)  It  is  settled  that  the  Statute  of 
^Limitations  does  not  bar  a  rent  charge, Cupit  v.  Jack- 
son, (13  Price,  495  ;)  2  Saunders'  Rep.  66,  note  (a) ;  Hall  v. 
Doe  dem.  Surtees,  (5  B.  &  A.  687,  7  Eng.  Com.  Law  Rep.  232;) 
Angel  on  Lira.  99,  105,  &c. ;  Den  McAllister,  (2  Halsted,  46 ;) 
Ord  v.  Hemming,  (2  Bos.  &  Pul.  542  ;)  Davis  v.  Shoemaker, 
(1  Rawle,  135.)  This  is  the  case  of  a  small  ground  rent,  of 
which  there  are  many  in  the  City  of  Philadelphia.  It  is  common 
to  suffer  them  to  remain  in  arrear  many  years.  Instances  have 
occurred  of  the  recovery  of  arrears  for  fifty  years.  The  Stat.  32 
Henry  8,  c.  2,  s.  3,  provides,  that  no  avowry  shall  be  made  for 
rent  due  above  fifty  years  next  before  making  the  avowry.  That 
statute  is  not  in  force  in  this  state  ;  but  even  in  England,  it  is  said 
not  to  extend  to  the  case  of  a  reservation  or  grant  of  a  rent,  when 
the  title  is  founded  on  a  deed.  Foster's  case,  (8  Rep.  128  ;) 
Cruise  Dig.  tit.  31,  c.  2,  s.  4.  The  argument  on  the  other  side 
would  make  the  remainder  men  suffer  for  the  supposed  default  of 
the  tenant  for  life. 

2.  The  payments  to  the  plaintiff,  by  the  executors  of  Shoe- 
maker, arose  from  a  mistake  in  respect  to  the  terms  of  the  will, 
which  they  are  entitled  to  rectify.  The  plaintiff  alleges  that  he 
has  not  received  the  full  amount  due  to  him  ;  and  as  to  the  sums 
which  shall  appear  to  have  been  actually  paid  to  him,  the  suit  is 
conducted  for  the  benefit  of  the  estate  of  Shoemaker. 

Reply. — It  is  not  contended  that  the  non-payment  of  rent  to 
the  tenant  for  life,  creates  a  presumption  of  a  release  by  the  par- 
ties in  remainder.  The  presumption  contended  for  here  is,  that 
the  interest  of  the  tenant  for  life  was  released.  The  current  of 
decisions  is  against  stale  demands,  whether  arising  from  bonds, 
judgments,  or  ground  rent  deeds.  In  Livinyston  v.  Livingston, 
Chancellor  Kent  went  the  whole  length  of  deciding  on  the 


1835.]  OF  PENNSYLVANIA.  233 

(St.  Mary's  Church  v.  Miles.) 

conclusiveness  of  a  presumption,  without  referring  the  question  to 
a  jury. 

The  opinion  of  the  court  was  delivered  by 

KENNEDY,  J. — The  counsel  of  the  defendants  has  made  three 
objections  to  the  recovery  of  the  plaintiff;  two  of  which  go  to 
the  whole  of  his  claim,  and  the  third  only  to  a  part.  The  first 
is,  that  upwards  of  thirty  years  having  elapsed,  without  any 
demand  having  been  made  of  the  rent,  or  payment  thereof 
received,  a  release  of  the  right  to  demand  it  ought  to  be  pre- 
sumed. The  second  is,  that  the  payment  of  the  annuity  by  the 
executors  of  Thomas  Shoemaker  was  a  satisfaction  and  discharge 
of  the  ground  rent,  as  it  became  payable,  on  the  lot  in  the 
tenure  of  the  defendants ;  and,  therefore,  the  plaintiff  ought  not 
to  recover.  The  third  is,  that  if  neither  the  first  nor  the  second 
should  be  considered  available,  still  the  plaintiff  is  not  entitled  to 
recover  that  portion  of  the  rent  claimed  by  him,  which  fell  due 
twenty  years  before  the  commencement  of  his  suit ;  *be- 
cause,  from  the  lapse  of  that  period  alone,  it  must  be 
presumed  to  have  been  paid. 

In  regard  to  the  first  objection ;  although  it  may  be  that  the 
law  will,  in  some  cases,  presume  a  grant  in  support  of  a  right 
which  has  been  exercised  and  enjoyed  by  a  person,  without  objec- 
tion or  interruption,  to  the  exclusion  of  all  others,  for  a  period 
of  twenty  years  or  more,  yet  it  does  not  follow  that  it  ought  to 
make  such  a  presumption,  in  order  to  defeat  a  person  of  a  right 
created  by  deed  and  not  controverted ;  without  any  thing  being 
shown  to  have  taken  place  in  the  conduct  of  the  parties  intrusted 
or  concerned  in  the  right,  that  Avas  inconsistent  with  the  exist- 
ence and  enjoyment  of  it.  In  this  case,  from  1798,  the  time 
when  the  defendants  first  became  the  owners  of  the  lot,  out  of 
which  the  plaintiff  claims  the  ground  rent,  it  does  not  appear  that 
any  demand  was  made  of  the  rent  until  1829,  shortly  before  the 
commencement  of  this  action ;  nor  that  there  ever  was  any  refu- 
sal on  the  part  of  the  defendants,  until  then,  to  pay  it;  so  that 
the  plaintiff,  had  he  claimed  the  rent  by  virtue  of  a  bare  previous 
seizin  thereof,  could  not  before  that  be  said  to  have  been  disseized 
of  it.  Until  then,  nothing  that  was  obviously  incompatible  with 
his  right  seems  to  have  taken  place.  After  this,  he  delayed  no 
time  in  asserting  his  right  by  instituting  this  action  for  the  recov- 
ery of  it.  But  the  rent  claimed  by  the  plaintiff  being  founded  up- 
on a  reservation  contained  in  a  deed  ;  whether  he  was  ever  seized 
of  it  or  not  can  in  no  wise  affect  his  right  to  a  recovery  thereof. 
The  evidence  of  his  right  to  it  does  not  depend  upon  his  having 
been  seized  of  it,  but  upon  the  deed,  which  is  established  beyond 
all  question,  and  the  tenor  and  effect  whereof  are  too  plain  to  be 
VOL.  i. — 16. 


234  SUPREME  COURT  [Dec.  Term, 

(St.  Mary's  Church  «.  Miles.) 

mistaken.  This  doctrine  is  fully  established  in  Sir  William 
Foster's  case,  8  Co.  129 ;  where  it  was  held  that  a  want  of  seizin 
within  forty  years,  in  the  party,  or  those  under  whom  he 
claimed  a  rent,  as  in  the  present  case,  was  no  bar  or  objection 
under  the  provisions  of  32  Hen.  8,  C.  2,  to  his  distraining  for 
it:  because  the  party's  right  to  the  rent  was  evidenced  by 
the  reservation  in  the  deed ;  and  it  was  only  where  he  was 
compelled,  for  want  of  such  deed,  to  resort  to  evidence  show- 
ing a  seizin  of  the  rent,  in  order  to  establish  his  right  to  it, 
that  this  statute  barred  the  claim,  unless  a  seizin  were  proved 
to  have  existed  within  forty  years.  We  have  no  statute  bar- 
ring the  right  of  an  owner  to  an  estate  consisting  of  ground 
rent,  through  his  neglect  to  assert  it ;  nor  yet  to  preclude 
him  from  recovering  the  rent  itself  after  any  lapse  of  time. 
It  is  true  that  statutes  of  limitation,  embracing  legal  estates 
or  legal  rights  alone,  have  been  extended  and  applied  by  courts 
of  equity  to  estates  and  rights  of  an  equitable  character, 
in  order  to  guard  against  evils  attending  the  latter  descrip- 
tion of  estates  and  rights  similar  to  those  provided  for  in 
respect  to  legal  estates  and  legal  rights  by  such  statutes;  but 
they  have  never  been  extended  by  either  courts  of  law  or  equity, 
to  estates  or  rights  purely  legal,  not  considered  as  coming  within 
rsKoqr-i  *either  the  letter,  spirit,  or  meaning  thereof.  The  ground 
-1  rent,  then,  in  question,  being  an  estate  purely  legal,  and 
there  being  no  act  or  statute  of  limitations  in  force  here  which 
comprehends  it,  it  follows  that  the  courts  have  no  authority  to  in- 
terpose any  limitation  that  would  bar  the  plaintiff  of  his  right  to 
enjoy  it.  The  exercise  of  such  a  power  would  not  only  seem  to 
be  intrenching  upon  the  legislative  province,  but  upon  the  con- 
stitutional right  of  the  plaintiff,  by  depriving  him  of  his  estate, 
without  having  given  him  any  previous  warning  of  his  danger, 
so  as  to  enable  him  to  guard  against  it.  It  is  proper  here  to  bear 
in  mind  that  it  is  the  title  or  right  of  the  plaintiff  to  the  rent,  as 
his  freehold  estate,  that  we  are  considering,  and  not  his  right  to 
receive  and  enforce  the  payment  of  the  back  rents ;  which  are  the 
fruits  of  it,  and  which  he  alleges  to  be  due  and  unpaid ;  because 
the  rent,  after  it  has  become  payable,  is  a  mere  debt  or  chose  in 
action,  which,  from  lapse  of  time,  a  jury  might  presume  had 
been  paid,  in  the  absence  of  everything  tending  to  show  the  con- 
trary ;  but  still,  the  existence  of  the  estate  is  not  affected  by  such 
presumption,  nor  the  right  of  the  owner  thereof  to  demand  and 
recover  the  subsequent  accruing  rents.  It  is  of  the  very  essence 
of  the  estate  here,  that  it  should  continue  to  exist  according  to 
its  original  limitation,  contained  in  the  reservation  creating  it ; 
and  accordingly  it  must  endure  for  ever,  unless  destroyed  or  put 
an  end  to  by  some  positive  act  of  the  party  having  the  power  to 


1835.]  OF  PENNSYLVANIA.  235 

(St.  Mary's  Church  v.  Miles.) 

do  so,  or  by  act  or  op,  ration  of  law.  But  why  should  the  neglect 
of  the  owner  of  the  rent  to  demand  it,  after  it  has  become  pay- 
able for  any  given  length  of  time,  produce  the  same  effect?  Such 
neglect  cannot  in  the  least  interfere  with  the  rights  of  the  owner 
of  the  lot ;  nor  prejudice  him  in  any  way.  He  has  a  right  to 
use,  and  to  improve  the  lot  if  he  pleases  ;  and  this  is  all  per- 
fectly consistent  with  the  duty  that  he  owes  to  the  owner  of  the 
ground  rent.  Their  respective  estates  are  distinct,  and  suscep- 
tible of  being  fully  enjoyed  without  conflict.  Ground  rents  seenT 
to  have  been  created  in  this  state,  with  a  view  to  promote  the 
improvement  of  unimproved  lands,  by  affording  the  grantees 
thereof  the  opportunity  of  employing  their  money  in  putting  up 
dwelling  and  other  houses  thereon,  instead  of  giving  it  to  the 
grantors  in  payment  of  what  would  have  been  considered  a  fair 
price  for  the  purchase  of  the  fee  simple  in  the  land,  without  any 
reservation  of  rent.  The  rent  reserved  in  such  cases,  forms  the 
only  and  whole  consideration  that  is  to  be  paid  for  the  land ;  and 
the  grantee  is  bound  to  pay  it,  only  as  long  as  the  title  which  he 
receives  from  the  grantor  proves  sufficient  to  protect  and  secure 
him  in  the  enjoyment  of  the  land  granted.  Hence,  the  right  o 
the  owner  to  the  ground  rent  seems  to  be  founded  in  great  equity, 
as  well  as  justice  ;  and  ought  not  therefore,  to  be  regarded  with 
any  disfavor.  Such  a  thing  as  the  extinguishment  of  a  ground 
rent,  by  the  owner  thereof,  has  seldom,  perhaps  never,  happened, 
without  his  executing  a  deed  or  instrument  of  *  writing  r*oofin 
to  that  effect :  which  may  be  placed  on  record,  and  the  L 
owner  of  the  ground  be  thus  protected  for  ever  after,  against  the 
payment  of  the  rent.  There  would  seem,  therefore,  to  be  little 
reason  for  presuming  a  release  of  the  ground  rent,  merely  from 
the  delay  of  the  owner  in  demanding  it.  Such  presumption,  if  it 
were  to  be  made,  would  doubtless  be  contrary  to  the  truth  of  the 
fact,  in  every  case  ;  and  would  certainly  work  injustice  to  the 
owner  of  the  ground  rent.  As  long,  therefore,  as  the  ground  rent 
can  be  shown  to  have  been  created  by  a  valid  deed,  and  the  title 
thereto  clearly  be  established  in  the  party  claiming  it,  mere  lapse 
of  time  ought  not  to  be  considered  sufficient  to  raise  the  presump- 
tion that  it  has  been  released.* 

As  to  the  second  objection,  it  seems  to  be  founded  upon  an 
entire  misapprehension  of  the  motives  which  induced  the  execu- 
tors of  Thomas  Shoemaker  to  pay  the  money  annually  to  the 
plaintiff.  The  counsel  of  the  defendants  seems  to  regard  it  as  if 
it  had  been  paid  by  them  in  discharge  of  the  ground  rent,  which 
became  due  annually  from- the  defendants,  upon  the  lot.  But  it 
is  plain  that  the  executors,  not  being  able  to  ascertain  where  the 

*  Act  of  27th  of  April,  1855,  §  7,  P.  L.  369,  Pur.  Dig.  517,  §  9. 


236  SUPREME  COURT  [Dec.  Term, 

(St.  Mary's  Church  v.  Miles.) 

ground  rent  was  to  come  from,  that  was  g*iven  by  the  will  to  the 
plaintiff  for  life  ;  and  conceiving  that  the  testator  intended  he 
should  have  the  sum  of  eight  dollars  paid  to  him  annually  out  of 
his  estate,  with  a  view  to  carry  the  will  of  the  testator,  in  this 
respect,  into  effect,  paid  to  the  plaintiff  the  annuity  of  that 
amount.  But  they  certainly  never  even  dreamed  of  paying  it 
for  the  benefit  of  the  owners  of  the  lot,  out  of  which  the  ground 
rent  might  be  coming  ;  nor  with  an  'intention  to  discharge  either 
the  owners  or  the  lot  from  the  payment  of  it.  The  money,  then, 
paid  by  the  executors,  not  being  paid  for  the  defendants  ;  nor 
with  a  view  to  benefit  or  release  them  from  their  liability  to  pay 
the  ground  rent ;  and  it  not  appearing  to  have  been  received  by 
the  plaintiff  with  any  such  view,  it  is  difficult  to  discover  any 
solid  ground  upon  which  the  defendants  can  claim  to  be  dis- 
charged from  their  duty  to  pay  it.  It  is  not  the  case  of  a  debt 
owing  by  the  defendants,  being  paid  by  the  executors,  either  with 
or  without  the  knowledge  of  the  former  ;  but  the  case  of  money 
advanced  by  the  latter  to  the  plaintiff,  out  of  the  estate  of  their 
testator,  until  it  should  be  discovered  where  the  lot  of  ground 
wlas  situate,  upon  which  the  ground  rent  devised  was  reserved. 
In  place,  therefore,  of  considering  the  payment  of  the  money  by 
the  executors,  as  a  discharge  of  the  rent  as  it  fell  due,  it  would 
certainly  be  much  more  rational  to  hold  it  to  be  an  advancement 
by  them  to  the  plaiptiff,  to  be  reimbursed  by  him  as  soon  as  he 
should  discover  the  lot  on  which  the  rent  was  reserved,  and  be 
enabled  to  recover  it  from  the  owners  thereof.  The  transaction 
is  susceptible  of  this  construction  ;  but  whether  it  was  paid  with 
an  understanding  that  it  should  be  returned  in  any  event  or  not, 
it  is  very  manifest  that  it  was  neither  paid  nor  received  with  a 
f*9371  design  that  the  defendants,  *  or  owners  of  the  lot,  should 
be  released  by  it  from  their  liability  to  pay  the  rent  to 
the  plaintiff :  and  it  cannot  be  that  the  law  will  give  such  effect 
to  it,  contrary  to  the  intention  of  both  the  payers  and  the  re- 
ceiver. We  are  therefore  clearly  of  opinion,  that  the  money  paid 
by  the  executors  to  the  plaintiff,  ought  not  to  be  held  a  satisfaction 
of  the  ground  rent  as  it  became  due  ;  and  that  the  defendants 
have  no  claim  to  an  exoneration  from  the  payment  of  it  on  that 
ground. 

The  third  objection  is  equally  untenable  with  the  two  first. 
In  short,  it  is  irreconcilable  with  the  first ;  because  a  lapse  of 
twenty  years  only  raises  a  presumption  of  payment,  when  nothing 
appears  to  rebut  it.  But  the  proposition  upon  which  the  de- 
fendants rest  their  first  objection  is,  that  no  ground  rent  was  ever 
demanded  of  them,  and  that  they  never  paid  any,  although  they 
had  held  the  lot  upwards  of  thirty  years  ;  and,  that,  after  such  a 
length  of  time,  it  ought  to  be  presumed  that  the  plaintiff  had 


1835.]  OF  PENNSYLVANIA.  237 

(Loud  0.  Bull.) 

released  his  right  to  receive  the  same  ;  so  that  their  first  objection 
contains  in  it  a  distinct  admission,  on  their  part,  that  they  have 
never  paid  any  portion  of  the  rent  claimed  by  the  plaintiff.  Be- 
sides, a  lapse  of  twenty  years,  unconnected  with  repelling  circum- 
stances, is,  at  most,  only  evidence,  as  it  has  been  said,  from  which 
the  jury,  and  not  the  court,  are  to  draw  the  inference  of  payment; 
so  that  had  the  defendants  intended  to  have  made  this  any  part  of 
their  defence,  they  ought  to.  have  submitted  it  as  a  fact  to  the  jury, 
to  be  decided  by  them,  under  the  direction  of  the  court.  This, 
however,  could  not  have  availed,  as  long  as  they  held  to  the  first 
ground  of  their  defence,  which  involved  their  admission  that  they 
had  never  paid  any  part  of  the  rent  claimed  by  the  plaintiff. 

Judgment  affirmed. 

Cited  by  Counsel,  2  Wharton,  129  ;  3  Watts  &  Sergeant,  12  ;  2  Barr,  169  ; 
7  Id.  155,  162 ;  1  Jones,  181 ;  7  Harris,  68 ;  3  Wright,  40 ;  IP.  F.  Smith, 
277  ;  4  Id.  303. 

Cited  by  the  Court,  post,  351 ;  1  Miles,  293. 

Affirmed,  9  Casey,  439. 


[*  PHILADELPHIA,  FEBKUARY  6,  1836.]  [*238] 

LOUD  against  BULL  and  Others. 
IN  ERROR. 

A  testator,  by  his  will,  proved  in  1814,  devised  all  his  estate  to  his  wife  for 
life,  and  after  her  decease,  to  his  five  children.  In  1825,  his  widow  ob- 
tained letters  of  administration,  cum  testamento  annexo,  and,  in  her 
character,  of  administratrix,  confessed  a  judgment  to  the  commissioners 
of  Spring  Garden,  for  a  certain  sum,  which,  by  the  statement  in  the  case, 
appeared  to  be  for  paving  done,  in  1820,  in  front  of  a  certain  lot,  whicji 
had  belonged  to  the  testator.  By  virtue  of  an  execution  on  this  judg- 
ment, the  lot  was  sold  at  sheriff's  sale  :  Held,  that  the  purchaser  acquired 
no  more  than  the  life  estate  of  the  wjdow. 

ERROR  to  the  District  Court  for  the  City  and  County  of  Phila- 
delphia, to  remove  the  record  of  an  action  of  ejectment,  brought 
in  that  court  to  June  term,  1829,  by  John  Bull,  William  Bachelor, 
and  Sarah  his  wife,  Elizabeth  Bull,  Abigail  Bull,  and  Rachel  Bull, 
against  John  Loud,  to  recover  possession  of  a  house  and  lot  of 
ground,  situate  in  James  street,  Spring  Garden,  Philadelphia.. 

The  plaintiffs  claimed  as  devisees  of  John  Bull,  their  father, 
who  died  seized  of  the  premises. 

The  defendant  claimed,  as  a  purchaser  at  a  sheriff's  sale,  under 


238  SUPREME  COURT  \_I>ec.  Term, 

(Loudu.  Bull.) 

a  judgment  obtained  against  the  administratrix  cum  teatamento 
annexo  of  John  Bull. 

On  the  trial  in  the  district  court,  a  special  verdict  was  given  by 
the  jury,  finding  the  following  facts  : 

"John  Bull,  on  the  13th  day  of  October,  1814,  died,  seized  in 
fee  of  the  premises  in  the  declaration  mentioned,  having  first  made 
his  last  will  and  testament  as  follows : 

'I,  John  Bull,  in  the  presence  of  John  Bennett  and  Philip  S. 
Claridge,  do  make  this  my  last  will  and  testament,  and  by  these 
presents  do  make  over  to  my  lawful  wife,  Catharine  Bull,  all  my 
estate,  real  and  personal,  during  her  natural  life ;  and,  after  her 
decease,  to  be  sold  and  equally  divided  between  my  five  children, 
viz  :  Sarah,  John,  Elizabeth,  Abigail  and  Rachel.' 

Which  will  was  duly  proved  on  the  14th  of  October,  1814,  in 
the  office  for  the  probate  of  wills,  &c.,  at  Philadelphia ;  and  let- 
ters of  administration,  cum  testamento  annexo^  were  granted  to 
Catharine  Bull,  the  widow,  on  the  14th  day  of  July,  A.  D.  1825. 
John  Bull,  at  the  time  of  his  death,  left  surviving  him,  a  widow, 
Catharine,  and  five  children,  viz.:  Sarah,  John,  Elizabeth,  Abigail 
and  Rachel,  plaintiffs  in  this  suit.  The  oldest  of  the  said  children, 
at  the  time  of  her  father's  death,  was  between  eighteen  and  nine- 
teen years  of  age — and  the  ages  of  the  others  were  from  nine  to 
I~*93Q1  nineteen.  The  *  widow  died  before  the  commencement 

J     of  this  suit ;  the  children  are  all  living. 
In  the  District  Court  for  the  City  and  County  of  Philadelphia, 
to  June  term,  1825,  the  following  action  was  entered: 
"  The  Commissioners  of  Spring  Garden, 

vs. 

Catharine  Bull,  administratrix, 
(fum  testamento  annexo  of  John  Bull,  deceased. 

It  is  hereby  agreed  to  enter  an  amicable  action,  case,  and 
judgment  in  favor  of  plaintiff,  for  the  sum  of  two  hundred 

and  six  dollars  and  forty-eight  cents. 5th  July,  1825. 

JAMES  PAGE,  for  plaintiffs. 

her 

CATHARINE  X  BULL." 

mark. 

"  Plaintiff's  claim  is  for  paving  on  James'  Street,  118|  feet — 
113  loads  of  dirt,  and  paving  50  yards  on  Charles  street,  in  the 
District  of  Spring  Garden,  amounting  together  to  the  sum  of 
$167  56  ;  which,  together  with  the  interest  thereon,  is  the  judg- 
.ment  confessed  in  the  above  case:  the  paving  on  James'  street 
being  done  in  1820,  and  the  paving  on  Charles  street  in  1823. 

JAMES  PAGE." 

The  agreement  for  the  above  action,  though  dated  on  the  5th 


1835.]  OF  PENNSYLVANIA.  239 

(Loud  v.  Bull.) 

of  July,  1825,  was  not  filed,  nor  the  assent  of  the  defendant  made 
perfect  to  it  until  letters  of  administration  were  granted. 

To  September  term,  1825,  a  fieri  facias  issued  in  the  above 
case,  and  the  estate  in  question  subject  to  a  rent  charge  of  44 
dollars — was  levied  on  and  condemned. 

To  December  term,  1825,  No.  56,  a  venditioni  exponas  issued; 
under  which  the  premises  in  question  (subject  as  aforesaid)  were 
sold  by  the  sheriff,  as  the  lands  and  tenements  of  John  Bull, 
deceased,  in  the  hands  and  possession  of  Catharine  Bull,  his  ad- 
ministratrix, to  Thomas  Matlock,  for  the  price  and  sum  of  $700, 
subject  to  the  said  ground  rent.  And  John  Douglas,  Esq.,  high 
sheriff  of  the  county  of  Philadelphia,  by  Deed  Poll  duly  acknowl- 
edged, and  dated  the  6th  of  December,  1825,  granted  and  con- 
veyed the  same  to  the  said  purchaser. 

By  deed,  dated  the  7th  of  June,  1827,  Thomas  Williams  and 
wife,  to  Thomas  Matlock,  for  consideration  of  $733  33,  the 
ground  rent  reserved  out  of  the  premises  in  question,  was  extin- 
guished. 

On  the  llth  of  February,  1828,  by  deed  of  that  date,  Thomas 
Matlock  and  wife,  for  the  consideration  of  $2300,  granted  the 
same  premises  to  John  Loud,  the  defendant." 

*The  District  Court  rendered  judgment  on  this  verdict     r*o  i  AT 
for  the  plaintiffs ;  whereupon  the  defendant  removed  the 
record  to  this  court,  and  assigned  the  following  errors : 

"1.  The  court  below  erred  in  deciding  that  the  judgment  ob- 
tained by  the  commissioners  of  the  District  of  Spring  Garden 
against  Catharine  Bull,  administratrix  cum  testamento  annexo  of 
John  Bull,  under  which  the  premises  in  question  were  sold,  was 
void,  and  that  the  sheriff's  sale  possessed  no  title. 

2.  They  erred  in  deciding  that,  upon  the  evidence,  the  title  to 
the  premises  was  with  the  defendant  in  error,  and  not  with  the 
plaintiffs." 

Mr.  Kittera,  for  the  plaintiff  in  error.  The  District  Court 
gave  judgment  for  the  plaintiffs,  on  the  ground  that  the  debt  for 
which  judgment  in  the  original  suit  was  confessed  by  the  admin- 
istratrix, arose  six  years  after  the  death  of  the  testator,  and  that 
the  judgment  was  on  that  ground  invalid  against  the  heirs.  Now, 
the  act  of  the  3d  of  March,  1818,  (7  Sm.  L.  60,)  gives  a  lien  to 
the  commissioners  of  Spring  Garden,  for  the  cost  of  paving  in 
front  of  vacant  lots.  The  commissioners  had  power  to  sell  at 
public  sale,  and  their  authority  being  in  rem,  it  is  of  no  conse- 
quence that  the  form  of  action  may  have  been  misconceived.  The 
plaintiff  in  error  is  a  bona  fide  purchaser  from  one  who  bought  at 
sheriff's  sale,  and  would  be  entitled  to  the  protection  of  the  ninth 
section  of  the  act  of  1705,  if  the  judgment  were  reversed.  Here, 


240  SUPREME  COURT  [Dec.  Term, 

(Loud  v.  Bull.) 

however,  the  judgment  is  in  full  force.  The  inconveniences  would 
be  very  great,  if  purchasers  at  sheriff's  sale  are  to  he  affected 
with  matters  that  do  not  appear  on  the  record.  Young  v.  Taylor, 
(2  Binn.  218 ;)  Wright  v.  Deklyne,  (1  Peters'  C.  C.  Rep.  202 ;) 
Jfartshorne  v.  Johnson,  (2  Halsted,  108.)  The  administratrix 
had  a  right  to  confess  a  judgment ;  and  to  support  it,  the  court 
will  presume  that  the  contract  for  this  paving  was  made  in  the  life 
time  of  the  testator,  or  that  he  was  living  in  1820.  The  state- 
ment may  he  rejected  as  surplusage,  since  the  judgment  would 
have  been  good  without  it.  The  plaintiff  in  error,  in  the  belief  of 
his  having  a  good  title,  paid  off  the  ground  rent. 

[In  answer  to  an  inquiry  by  the  Ch.  Justice,  it  was  stated  that 
the  court  below  imposed  a  condition  upon  the  plaintiffs,  that  they 
should  refund  the  amount  paid  by  the  defendant  to  extinguish  the 
ground  rent,  and  that  the  plaintiffs  had  entered  into  a  stipulation 
accordingly.] 

Mr.  Hopkins,  (with  whom  was  Mr.  Tilyhman,)  was  stopped  by 
the  court. 

PER  CURIAM.  As  the  judgment  was  confessed  by  the  admin- 
istratrix, for  a  debt  incurred  after  the  death  of  the  decedent,  it 
r*241T  was  *suffered  by  ner  clearly  in  her  own  right;  her  be- 
J  ing  named  as  administratrix  being  but  description  or  sur- 
plusage ;  and  a  sale  under  it  of  the  decedent's  land,  therefore, 
passed  no  title.  But  even  if  viewed  as  a  judgment  against  her  in 
auter  droit,  a  sale  under  it  would  have  no  greater  consequence,  as 
the  judgment,  not  being  founded  on  a  true  demand  against  the 
decedent,  would  be  collusive ;  and  the  nature  of  the  claim  appear- 
ing on  the  face  of  the  declaration,  would  affect  the  purchaser  with 
notice.  Still  further,  the  lien  of  the  decedent's  creditors  had  ex- 
pired, and  a  judgment  suffered  by  his  personal  representative 
could  not  affect  his  land.  On  all  these  grounds  judgment  was 
properly  given  for  the  plaintiffs. 

Judgment  affirmed. 


1835.]  OF  PENNSYLVANIA.  241 

[PHILADELPHIA,  FEBRUARY  6,  1836.] 
SOLOMON  against  WILSON. 

APPEAL. 

A.  the  holder  of  a  mortgage  for  $450,  by  an  instrument  under  seal,  assigned 
the  mortgage  to  B.  with  condition  that  if  the  receipts  of  a  certain  theatre 
should  on  a  certain  night  amount  to  $300,  B.  should  re-assign  the  mort- 
gage to  him  and  pay  him  whatever  the  said  receipts  should  amount  to 
beyond  the  said  sum  of  §300 ;  and  if  the  receipts  should  be  less  than 
$300,  B.  was  to  hold  the  mortgage  as  security  for  the  deficiency  ;  and  if 
the  same  should  not  be  paid  by  a  certain  time,  (one  week  thereafter,)  the 
mortgage  was  to  be  considered  as  absolutely  assigned  to  B.,  his  exec- 
utors, administrators,  &c.  B.  assigned  the  mortgage  to  C.,  who  brought 
suit  upon  it  and  sold  the  mortgaged  premises  at  sheriffs  sale,  the  pro- 
ceeds of  which  were  brought  into  Court  for  distribution.  Upon  an  issue 
directed  by  the  Court,  it  was  ascertained  that  the  receipts  of  the  theatre 
on  the  night  mentioned  in  the  assignment  were  $155.  Held,  that  the 
clause  respecting  the  absolute  assignment  of  the  mortgage  was  to  be 
considered  in  the  nature  of  a  penalty,  against  which  equity  would  relieve 
after  the  appointed  day  ;  and  that  B.  was  entitled  to  receive,  out  of  the 
money  in  Court,  only  the  difference  between  the  actual  receipts  of  the 
theatre  and  the  sum  of 


THIS  was  an  appeal  from  a  decree  of  the  District  Court  for  the 
city  and  county  of  Philadelphia,  in  the  distribution  of  the  proceeds 
of  certain  real  estate, ^sold  by  virtue  of  a  writ  of  levari  facias  in 
a  suit,  wherein  Samuel  M.  Solomon  was  plaintiff,  and  William 
Wilson  was  defendant. 

The  material  circumstances  were  these  :  Elijah  Heaton,  being 
the  owner  of  certain  real  estate,  sold  the  same  to  the  defendant 
Wilson,  and  in  part  payment  of  the  purchase  money  took  from 
him  a  bond,  conditioned  for  the  payment  of  four  hundred  and 
fifty  dollars,  which  was  secured  by  a  mortgage  of  the  premises. 
On  the  twenty-fourth  *of  November,  1829,  Elijah  Hea-  r*249~] 
ton,  the  mortgagee,  executed  the  following  instrument. 

"  For  a  valuable  consideration,  I  assign,  transfer,  and  set  over 
to  Aaron  J.  Phillips,  manager  of  the  Arch  Street  Theatre,  a  bond 
and  mortgage  from  William  Wilson  to  Elijah  Heaton,  dated  the 
eighth  day  of  July,  1829,  in  which  the  said  Wm.  Wilson  is  bound 
to  me  the  said  Elijah,  in  the  penal  sum  of  nine  hundred  dollars, 
conditioned  for  the  payment  of  four  hundred  and  fifty  dollars. 

"  The  condition  of  this  assignment  is,  that  if  the  receipts  of  the 
Arch  Street  Theatre  on  Saturday  evening,  November  28,  1829, 
shall  amount  to  three  hundred  dollars,  the  said  Aaron  J.  Phillips, 
shall  re-assign  the  said  bond  and  mortgage  to  me,  and  pay  unto  me 
whatever  sum  of  money  may  be  received  in  the  said  theatre,  upon 
the  said  night,  beyond  the  aforesaid  sum  of  three  hundred  dollars, 
or  if  the  receipts  upon  the  above  night  shall  be  less  than  three 
hundred  dollars,  the  said  Aaron  J.  Phillips  is  to  hold  the  said 


242  SUPREME  COURT  [Dec.  Term, 

(Solomon  v.  Wilson.) 

bond  and  mortgage  as  security  for  such  sum  as  may  be  necessary 
to  make  up  the  said  amount,  which  if  not  paid  by  Saturday, 
December  tith,  1829,  the  said  bond  and  mortgage  is  to  be  consid- 
ered as  absolutely  assigned  to  the  said  Aaron  J.  Phillips,  his 
heirs,  executors,  administrators,  or  assigns. 

"  Witness  my  hand  and  seal  this  twenty-fourth  of  November, 
one  thousand  eight  hundred  and  twenty-nine, 

ELIJAH  HEATON,  [L.  s.] 
Sealed  and  signed  in  the 
presence  of  us, 
T.  H.  COPELAND, 
SAMUEL  IRWIN." 

On  the  3d  of  February,  1830,  Aaron  J.  Phillips  executed  the 
following  instrument. 

"  Whereas  by  virtue  of  the  within  written  instrument  a  certain 
bond  and  mortgage  therein  referred  to,  were  assigned  to  me, 
Aaron  J.  Phillips,  on  certain  conditions,  which  conditions  have 
not  at  this  day  been  complied  with,  and  the  said  bond  and  mort- 
gage have  become  absolutely  vested  in  me. 

"Now,  know  all  men  by  these  presents  that  I,  Aaron  J.  Phil- 
lips, of  the  City  of  Philadelphia,  for  and  in  consideration  of  the 
sum  of  one  hundred  and  twenty-five  dollars,  to  me  in  hand  paid 
by  Samuel  M.  Solomon,  also  of  the  said  city,  the  receipt  whereof 
is  hereby  acknowledged,  have  assigned,  transferred,  and  set  over, 
and  by  these  presents  do  assign,  transfer,  and  set  over,  unto  the 
said  Samuel  M.  Solomon,  Esq.,  his  heirs  and  assigns,  the  said 
bond  and  mortgage  and  all  my  right,  title,  and  interest  therein, 
and  all  future  benefit  and  profit  to  be  derived  therefrom. 
r*9431  *"  Witness  my  hand  and  seal  at  Philadelphia  this 
J  third  day  of  February,  one  thousand  eight  hundred  and 
thirty. 

AARON  J.  PHILLIPS,  [L.  s.] 
Sealed  and  delivered  in  the 

presence  of  us, 
GEO.  P.  HOOD, 
J.  A.  PHILLIPS." 

Solomon,  the  assignee,  brought  suit  upon  the  mortgage,  and 
proceeded  to  a  sale  of  the  premises,  the  purchase  money  of  which 
having  been  brought  into  court,  was  claimed  by  several  lien  cred- 
itors. The  Court  directed  an  issue  to  ascertain  (inter  alia)  the 
amount  chargeable  as  receipts,  for  tickets  of  admission  to  the 
Arch-Street  Theatre  on  the  28th  of  November,  1829,  agreeably 
to  the  terms  of  the  assignment. 

The  issue  was  tried,  and  the  jury  found  that   the    receipts^ 
amounted  to  one  hundred  and  fifty-five  dollars,  twenty-five  cents. 


1835.]  OF  PENNSYLVANIA. 

(Solomon  v.  Wilson.) 

The  Court  then  ordered  distribution,  and  (inter  alia)  to  S.  M. 
Solomon,  the  principal  and  interest  of  the  mortgage  given  by  the 
defendant  to  Heaton,  amounting  to  $493  73 

Deducting  therefrom  the  receipts  of  the  Arch- 
Street  Theatre  and  interest  thereon  183  18 


To  be  received  by  him  $310  55 


From  this  decree  Elijah  Heaton  appealed  to  this  Court,  and  as- 
signed for  error. 

"  1st.  That  the  Court  below  erred  in  ordering  the  payment  to 
S.  M.  Solomon  of  the  sum  of  three  hundred  and  ten  dollars,  fifty- 
five  cents,  being  the  amount  of  the  mortgage  money  after  deduct- 
ing the  receipts  of  the  theatre,  instead  of  giving  him  the  sum  of 
one  hundred  and  forty-four  dollars,  seventy-five  cents,  being  the 
difference  between  the  sum  of  three  hundred  dollars  and  the  actual 
receipts  of  the  theatre. 

2d.  That  the  Court  erred  in  not  awarding  to  Elijah  Heaton  the 
balance  of  the  mortgage  money,  after  deducting  the  sum  of  one 
hundred  and  forty-four  dollars,  seventy-five  cents." 

Mr.  W.  M.  Meredith,  for  the  appellant,  contended  that  the 
assignment  by  Heaton  to  Phillips  was  merely  as  a  pledge  or  col- 
lateral security  ;  and  that  the  condition  was  in  the  nature  of  a 
penalty,  against  which  the  Court  would  relieve.  He  cited  Hart 
v.  Ten  Eyck,  (2  Johns.  Ch.  Rep.  100.) 

Mr.  Phillips,  contra.  The  assignment  contained  an  express 
stipulation  that  if  the  money  was  not  paid  by  a  certain  time  the 
mortgage  *sho\Jd  be  considered  as  absolutely  assigned,  r*  044-1 
Now,  it  is  important  that  no  offer  to  redeem  is  shown, 
and  no  claim  set  up  until  the  premises  are  sold,  and  the  proceeds 
brought  into  Court.  Here  the  mortgage  was*  not  payable  for 
some  time.  The  security  was  insufficient,  being  upon  frame 
buildings ;  the  risk  of  loss  therefore  fell  on  the  assignee.  This 
was  not  a  hard  bargain  for  Heaton.  If  the  receipts  of  the  theatre 
had  amounted  to  $1500,  which  has  been  the  case  sometimes,  he 
would  have  received  all  above  $300.  Besides,  Heaton  has  no 
right  to  ask  this  Court  to  interfere.  He  was  not  a  party  in  the 
Court  below.  If  Solomon  has  received  more  than  he  is  entitled 
to,  he  may  be  considered  a  trustee  for  Heaton. 

Reply. — The  proceedings,  on  a  question  of  distribution,  are  in 
the  nature  of  Chancery  proceedings.  Every  one  having  an  in- 
terest in  the  fund  is  supposed  to  be  a  party,  and  is  bound  to 


244  SUPREME  COURT  [Dec.  Term, 

(Solomon  t).  Wilson.) 

take  notice  of  what  is  going  forward.     In  fact  the  issue  in  the 
Court  below  was  directed  for  the  benefit  of  Heaton. 

The  opinion  of  the  Court  was  delivered  by 

GIBSON,  C.  J. — The  difference  between  a  mortgage  and  a 
pawn,  if  there  be  any,  serves  but  to  strengthen  the  case  of  the 
pawner.  It  is  said  by  Mr.  Powell  in  his  treatise  pp.  3,  4,  that 
by  forfeiture,  the  interest  of  the  mortgagee  becomes  absolute  at 
law,  while  the  pawnee  has  but  a  special  property  as  a  security. 
But  it  seems  to  be  agreed  that  whether  the  title  of  the  pawnee 
be  absolute  or  qualified,  his  redemption  in  equity  is  at  least 
equal  to  that  of  a  mortgagor  (Bac.  Abr.  Bailment,  B.)  What 
were  the  terms  of  the  pledge  here?  The  mortgage  was  as- 
signed as  a  security  for  whatever  the  receipts  at  the  theatre 
might  fall  below  a  specified  sum,  on  condition  that  it  should 
become  absolute  if  the  assignor  failed  to  make  up  the  difference 
by  a  given  day.  Was  not  this  condition  a  penalty,  against  which 
equity  will  relieve  ?  In  Stoever  v.  Stoever,  (8  Serg.  &  R.  434,) 
it  was  agreed  that  a  mortgagor  against  whom  an  ej  ctment  was 
pending,  should  confess  judgment  with  stay  of  execution,  at  the 
expiration  of  which,  if  the  debt  was  not  paid,  a  habere  facias 
should  issue,  and  the  rents  of  the  current  year  be  paid  to  the 
mortgagee.  And  this,  as  equity  will  but  in  very  special  circum- 
stances enlarge  the  time  of  redemption  after  foreclosure  by 
agreement,  was  held  to  be  a  foreclosure  on  terms  that  had  sub- 
sequently become  absolute.  It  is  to  be  remarked,  however,  that 
among  the  ingredients  of  that  case,  were  material  ones  which  do 
not  enter  into  this.  The  value  of  the  premises  but  little  ex- 
ceeded the  amount  of  the  debt,  and  the  creditor  had  made  im- 
provements in  which  the  debtor  had  long  acquiesced ;  so  that 
there  was  clearly  enough  in  the  transaction  to  show  that  it  was  a 
conditional  sale  of  the  equity  of  redemption.  Such  was  not  the 
case  here.  The  mortgage  was  pledged  as  a  security  for  what 
Burned  out  to  be  less  *than  a  third  of  its  value  ;  and,  as 
time' does  not  seem  to  have  been  a  cardinal  point  of  the 
agreement,  the  delay  being  susceptible  of  compensation  by  inter- 
est, the  question  seems  to  be  whether  the  condition  had  respect 
to  a  penalty  or  to  stipulated  damages.  As  the  inclination  of  the 
Court  is  to  relieve  wherever  the  loss  admits  of  compensation, 
stipulated  damages  result  but  from  an  explicit  antecedent  valu- 
ation of  the  loss  by  the  parties  themselves.  It  is  an  inflexible 
rule,  and  apparently  applicable  here,  to  relieve  wherever  the  act 
to  have  been  done,  was  payment  of  money.*  "  There  is  one 
case,"  said  Justice  Chambre  in  Astley  v.  Weldon,  (2  B.  &  P.  354,) 

*See  2  Harris,  145. 


1835.]  OF  PENNSYLVANIA.  245 

(Solomon  v.  Wilson.) 

"  in  which  the  sum  agreed  for  must  always  be  a  penalty ;  and 
that  is  where  the  payment  of  a  smaller  sum  is  secured  by  a 
greater."  And  Lord  Loughborough  in  Orr  v.  Churchill,  (1  H. 
B.  227,)  having  stated  that  for  non-performance  of  collateral  acts, 
the  damages  may  be  estimated  by  a  jury  or  by  previous  agree- 
ment, says:  "But  where  the  question  is  concerning  the  non-pay- 
ment of  money,  in  circumstances  like  the  present,  the  law,  having 
by  positive  rules  fixed  the  rate  of  interest,  has  bounded  the  meas- 
ure of  damages ;  otherwise  the  law  might  be  eluded."*  Now  the 
agreement  being  in  effect  to  pay  the  amount  of  the  mortgage  by 
an  absolute  transfer  of  it,  if  the  difference  were  not  made  good  by 
a  certain  day,  was  not  the  alternative  a  penalty  ?  It  was  a  for- 
feiture to  enforce  payment,  and  therefore  a  penalty  in  substance 
if  not  in  form.  But  the  character  of  the  forfeiture  is  ascertain- 
able  from  no  particular  words,  but,  as  said  by  Lord  Eldon  in 
Astley  v.  Weldon,  from  the  whole  instrument.  It  is  in  fact  only 
in  cases  of  informal  expression  that  questions  of  the  sort  arise ; 
for  where  the  parties  themselves  call  it  a  penalty,  relief  is  of 
course.  Had  the  assignor  given  his  own  bond  in  the  same  amount 
as  the  mortgage,  with  condition  to  assign  the  mortgage  uncondi- 
tionally in  default  of  payment,  there  could  not  have  been  a  ques- 
tion; and  what  is  the  difference,  where  the  assignee  has  the 
assignor's  sealed  agreement  that  a  transfer  simultaneously  made 
shall  be  absolute  on  the  happening  of  the  same  contingency  ?  It 
is  in  substance  equally  an  agreement  to  forfeit  the  same  sum  by 
failure  to  pay  ;  and  it  is  immaterial  to  the  assignee,  as  well  as  to 
the  question,  whether  it  be  secured  by  the  engagement  of  the  as- 
signor or  the  engagement  of  another.  The  difference  in  amount 
between  the  value  of  the  mortgage  and  the  sum  intended  to  be 
secured  by  it,  being  in  the  ratio  of  more  than  three  to  one,  is 
enormous  ;  and  to  hold  the  alternative  for  payment  at  the  day  to 
be  stipulated  damages  in  the  form  of  a  conditional  sale  instead  of 
a  penalty,  would  be  unreasonable  and  unjust.  The  parties  them- 
selves did  not  so  understand  it.  The  decree  of  the  Court  below 
therefore  is  reversed,  and  it  is  ordered  that  the  appellant  have 
leave  to  take  out  of  Court  the  balance  of  the  fund,  after  paying 
to  the  holder  of  the  mortgage  the  principal  and  interest  due  on 
the  original  demand. 

Decree  accordingly. 

Cited  by  Counsel,  5  Barr,  186 ;  1  Jones,  34. 

See  also  6  Watts,  130,  406  ;  7  Id.  375  ;  3  Watts  &  Sergeant,  388  ;  3  Har- 
ris, 321. 

•See  12  Wright,  454. 


246  SUPREME  COURT  [Dec.  Term, 

[•PHILADELPHIA,  FEBRUARY  6,  1836.] 
SKERRETT  against   BURD. 

CASE  STATED. 

A  conveyance  in  fee  simple  of  a  lot  of  ground,  is  a  revocation  of  a  will  pre- 
viously made  by  the  grantor,  so  far  as  respects  such  lot ;  although  upon 
such  conveyance  the  grantor  reserves  to  himself  a  ground  rent  in  fee  ; 
and  such  ground  rent  does  not  pass  to  the  devisee  of  the  lot. 

THIS  was  an  action  of  covenant  brought  by  David  C.  Skerrett 
against  Edward  S.  Burd,  to  recover  the  arrears  of  a  ground  rent; 
in  which  a  case  was  stated  for  the  opinion  of  the  Court,  as 
follows : 

"  John  Shields  of  the  City  of  Philadelphia,  being  seized  in  fee 
of  certain  messuages,  tenements  and  lots  of  ground,  situate  in  the 
half  square  between  Broad  street  and  Juniper  street,  and  Spruce 
street  and  Locust  street,  in  the  said  city,  made  and  executed  his 
last  will  and  testament,  dated  the  twenty -fourth  day  of  December, 
1829,  which  was  duly  proved  in  the  Register's  Office  for  the  City 
and  County  of  Philadelphia,  on  the  twenty-third  day  of  June,  one 
thousand  eight  hundred  and  thirty-one. 

By  this  will  he  recognized  his  three  illegitimate  children  in  the 
following  words :  "Item,  Whereas,  I  have  three  children,  called 
and  known  by  the  names  of  James  Shields,  Mary  Shields  and 
Edwin  Shields,  which  said  three  children  are  illegitimate,  but  have 
been  and  are  hereby  owned  and  recognized  by  me."  And  after 
other  devises  aud  bequests  he  then  preceded :  "Item,  I  do  give 
and  devise  uuto  my  daughter,  the  said  Mary  Shields,  when  and  as 
soon  as  she  shall  attain  the  full  age  of  twenty-one  years,  her  heirs 
and  assigns,"  (inter  alia,)  "also,  all  and  singular  my  messuages, 
tenements  and  lots  of  ground,  situate  in  the  half  square  between 
Broad  street  and  Juniper  street,  and  Sprnce  street  and  Locust 
street,  in  the  City  of  Philadelphia,"  "to  hold  and  take  the  same 
to  her,  the  said  Mary  Shields,  her  heirs  and  assigns,  to  and  for 
her  and  their  own  proper  use,  benefit  and  behoof  forever."  And 
after  other  devises  and  bequests  the  testator  disposed  of  the  resi- 
due of  his  estate  as  follows : 

"Item,  and  as  to  all  the  rest,  residue  and  remainder  of  my  es- 
tate whatsoever  and  wheresoever  in  the  world,  real,  personal  and 
mixed,  I  do  give,  devise  and  bequeath  the  same  to  my  said  three 
children,  James  Shields,  Mary  Shields  and  Edwin  Shields,  when 
and  as  soon  as  they  shall  severally  attain  the  age  aforesaid,  their 
respective  heirs,  executors,  administrators  and  assigns  forever,  in 
equal  third  parts  as  tenants  in  common  and  not  as  joint  tenants. 
Item,  in  case  of  the  decease  of  either  or  any  of  my  said  three  chil- 


1835.]  OF  PENNSYLVANIA.  246 

(SkerretttJ.  Burd.) 

dren,  before  he,  she  or  they  shall  attain  the  full  age  of  twenty-one 
years,  as  aforesaid,  and  without  issue,  then  I  do  give,  devise  and 
bequeath  the  part  and  share  *  of  such  decedent  or  deced-  r*  04.71 
ents  to  the  survivor  or  survivors  of  them  my  said  three  *•  -• 
children,  their  heirs,  executors,  administrators  and  assigns,  if  more 
than  one,  share  and  share  alike  as  tenants  in  common.  But  if  all 
my  said  three  children  should  depart  this  life  before  attaining  the 
age  aforesaid,  and  without  issue,  then  I  do  give,  devise,  and  be- 
queath all  my  estate,  real,  personal  and  mixed,  unto  the  Pennsyl- 
vania Institution  for  the  Deaf  and  Dumb,  their  successors  and  as- 
signs forever." 

After  the  execution  and  publication  of  his  said  last  will,  the 
said  John  Shields,  on  the  fifteenth  day  of  April,  1830,  did,  by 
deed  bearing  date  the  same  day,  grant  and  convey  unto  Edward 
S.  Burd,  (the  above  defendant)  in  fee  simple,  a  certain  lot  or 
piece  of  ground  situate  at  the  north-east  corner  of  Spruce  and 
Broad  streets,  in  the  said  city,  containing  in  front  on  Broad  street 
ninety-seven  feet,  and  in  length  or  depth  one  hundred  and  thirty 
feet,  to  a  twenty  feet  wide  alley  ;  yielding  and  paying  therefor 
and  thereout  unto  the  said  John  Shields,  his  heirs  and  assigns, 
the  yearly  rent  or  sum  of  four  hundred  and  twelve  dollars  and 
twenty-five  cents,  in  equal  half  yearly  payments  on  the  fifteenth 
day  of  the  months  of  April  and  October  in  every  year  thereafter 
forever,  clear  of  taxes,  &c.  In  which  same  deed  a  power  of 
re-entry  is  contained  in  the  following  words,  viz.  "  But  if  suf- 
ficient distress  cannot  be  found  upon  the  said  hereby  granted 
premises  to  satisfy  the  said  yearly  rent  in  arrear  and  the  charges 
of  levying  the  same,  then  and  in  such  case  it  shall  and  may  be 
lawful  for  the  said  John  Shields,  his  heirs  and  assigns,  into  and 
upon  the  said  hereby  granted  lot  and  all  improvements  wholly  re- 
enter,  and  the  same  to  have  again,  re-possess  and  enjoy,  as  in  his, 
their  first  and  former  estate  and  title  in  the  same,  and  as  though 
this  indenture  had  never  been  made."  Said  lot  being  a  part  of 
the  said  messuages,  tenements  and  lots  of  ground  situate  in  the 
said  half  square  first  above  mentioned  and  devised  as  aforesaid  to 
the  said  Mary  Shields. 

And  the  said  John  Shields  did  also  after  the  aforesaid  execu- 
tion and  publication  of  his  said  will,  on  the  fourteenth  day  of 
March,  1831,  by  deed  bearing  date  the  same  day,  grant  and  con- 
vey unto  Adam  Cornman,  in  fee  simple,  a  certain  lot  or  piece  of 
ground  situate  on  the  east  side  of  Broad  street,  at  a  distance  of 
ninety-seven  feet  north  from  the  north  side  of  Spruce  street, 
in  the  said  city,  containing  in  front,  on  Broad  street,  ninety  feet 
nine  inches,  and  in  length  or  depth,  eastward  one  hundred  and 
thirty  feet,  to  a  twenty  feet  wide  alley,  yielding  and  paying  there- 
for and  thereout,  unto  the  said  John  Shields,  his  heirs  and  assigns, 


247  SUPREME  COURT  \_Dee.  Term, 

(Skerrett  t>.  Burd.) 

the  yearly  rent  or  sum  of  ninety-eight  dollars,  in  equal  half  yearly 
payments,  on  the  sixteenth  day  of  the  months  of  August  and  Feb- 
ruary, in  every  year,  forever,  clear  of  taxes,  &c.,  with  a  power  of 
re-entry,  similar  in  all  respects  to  that  contained  in  the  deed 
f*24ft1  *  ^rs*'  a^ove  described,  and  in  the  same  words.  Said 
J  lot  being  also  a  part  of  the  said  messuages,  tenements 
and  lots  of  ground,  situate  in  the  said  half  square  first  above  men- 
tioned, and  devised  as  aforesaid  to  the  said  Mary  Shields. 

On  the  fourteenth  day  of  June,  1881,  John  Shields  intermar- 
ried with  Eliza  Rernstedt ;  and  afterwards,  to  wit,  on  the  same 
day,  died,  having  never  republished  his  said  last  will  and  testa- 
ment, leaving  neither  father,  nor  mother,  nor  lawful  issue,  but  a 
widow,  the  said  Eliza  Shields,  and  three  brothers  of  the  whole 
blood,  to  wit :  Thomas  Shields,  Robert  Shields,  and  David  Shields. 
His  three  illegitimate  children  above  named,  survived  the  testator, 
and  are  still  living,  under  age,  and  unmarried. 

In  1831,  David  C.  Skerrett,  the  above  plaintiff,  was  appointed 
by  the  Orphans'  Court  of  the  County  of  Philadelphia,  guardian 
of  the  persons  and  estates  of  the  said  minors,  James  Shields, 
Mary  Shields,  and  Edwin  Shields. 

On  the  twenty-first  of  March,  1832,  the  said  Eliza  Shields  con- 
veyed all  her  interest  in  the  one-third  part  of  the  said  yearly  rent 
charges  (inter  alia)  to  David  Shields,  by  deed  bearing  date  same 
day  and  year. 

On  the  thirty-first  day  of  March,  1832,  the  said  David  Shields 
and  wife,  by  deed  bearing  date  the  day  and  year  last  aforesaid, 
conveyed  all  his  one-third  part  of  the  said  yearly  rent  charges, 
(inter  alia)  including  the  interest  of  the  said  Eliza  Shields,  so 
conveyed  as  aforesaid,  together  with  all  arrears  of  rents,  to  the 
said  David  C.  Skerrett,  (the  plaintiff)  in  fee  simple,  upon  certain 
trusts. 

On  the  fifth  day  of  July,  1832,  the  said  Thomas  Shields,  by 
deed  bearing  date  the  same  day  conveyed  all  his  one-third  part 
of  the  said  yearly  rent  charges,  (inter  alia')  together  with  all 
arrears  of  rent,  to  the  said  David  C.  Skerrett,  (the  plaintiff)  in 
fee  simple,  upon  certain  trusts. 

On  the  twentieth  day  of  August,  1832,  the  said  Eliza  Shields, 
conveyed  by  deed  bearing  date  the  same  day,  all  her  interest, 
(inter  alia)  of,  in,  and  to  the  two-third  parts  of  the  said  Thomas 
Shields  and  Robert  Shields,  in  the  said  yearly  rent  charges,  to 
the  said  David  C.  Skerrett,  upon  certain  trusts. 

By  these  conveyances,  the  whole  of  the  interest  of  the  said 
Eliza  Shields,  David  Shields  and  wife,  and  Thomas  Shields,  of,  in, 
and  to  the  said  yearly  rent  charges,  became  vested  in  the  said 
David  C.  Skerrett,  the  above  plaintiff. 

On  the  ninth  day  of  May,  1832,  the  said  Adam  Cornman,  by 


1835.]  OF  PENNSYLVANIA.  248 

(Skerrett  v.  Burd.) 

deed  bearing  date  the  same  day,  conveyed  the  said  lots,  as  above 
conveyed  to  him  by  John  Shields,  to  the  said  Edward  S. 
Burd,  in  fee  simple,  under  and  subject  to  the  payment  of  the 
yearly  rent  charge  so  reserved  as  aforesaid.  There  are  arrears 
of  rent  arising  from  the  non-payment  of  these  yearly  rent 
charges. 

*Upon  these  facts,  the  following  questions  are  sub- 
mitted  to  the  Court  for  their  opinion. 

1.  Did  not  Eliza  Shields,  by   her  intermarriage  with    John 
Shields  after  the  publication  of  his  last  will,  upon  his  death  be- 
come entitled  to  a  moiety  of  the  rent  charges  during  her  life  ? 

2.  Did  not  John  Shields  die  intestate  as  to  those  two  yearly 
rent  charges,  and  did  they  not  descend  to   his  three   brothers, 
Thomas  Shields,  Robert  Shields,  and  David  Shields,  in  fee  simple, 
as  tenants  in  common,  subject  to  the  life-estate  of  the  widow  in  a 
moiety  ? 

3.  Did  not  the  conveyance  above  stated,  vest  in  the  plaintiff 
two-thirds  parts  of  the  said  two  yearly  rent  charges  in  fee  simple, 
and  an  estate  for  the  life  of  Eliza  Shields,  in  a  moiety  of  the  other 
third  part  ? 

4.  Did  John  Shields,  the  testator,  in  and  by  the  two  several 
ground-rent  deeds  above  specified,  divest  himself  thereby  of  all 
estate  whatever  in  so  much  of  the  said  messuages,  tenements  and. 
lots  of  ground,  situated  in  the  half  square  between  Broad  and 
Juniper  streets  and  Spruce  and  Locust  streets,  with  the  appur- 
tenances thereunto  respectively  belonging,  devised  (inter  alia)  to 
Mary  Shields,  in  and  by  the  said  will,  as  Avere  conveyed  by  the 
said  two  ground-rent  deeds  ?  and  did  he  die  intestate  of  the  two 
several  rent  charges,  reserved  in  and  by  the  said  two  ground- 
rent  deeds  respectively  ? — Or,  did  such  an  interest  and  estate  in 
the  said  premises,  continue  and  remain  in  him,  notwithstanding 
the  execution  of  the  said  ground  rent  deeds,  as  to  be  the  subject 
of  said  devise,  and  upon  which  the  same  can  in  any  manner 
operate  ? 

If  these  questions  should  be  determined  in  the  affirmative  by  the 
Court,  then  judgment  to  be  entered  in  favor  of  the  plaintiff,  for 
such  sum  as  may  be  agreed  upon  by  the  parties  or  their  counsel ; 
and,  in  case  of  any  difference  of  opinion  between  them,  the  said 
sum  shall  be  settled  by  the  Court. 

If  the  Court  shall  determine  these  questions  in  the  negative, 
then  judgment  to  be  entered  in  favor  of  the  defendant." 

Mr.  J.  M.  Read,  for  the  plaintiff.  This  is  an  amicable  pro- 
ceeding ;  the  object  of  which  is  the  determination  of  a  question 
of  law.  Mr.  Burd  is  only  a  stakeholder.  By  a  family  arrange- 
ment between  the  widow  and  two  of  the  brothers  of  the  testator, 

VOL.  i. — 17. 


249  SUPREME  COURT  [Dec.  Term, 

(Skerrettc.Burd.) 

conveyances  have  been  executed  to  carry  the  will  into  effect.  The 
interest  of  one  of  the  brothers  is  outstanding. 

1.  The  will  was  revoked  by  the  marriage  of  the  testator.   (Act 
of  19th  April,  1794,  §  23.) 

2.  The  conveyance  of  the  lot  on  ground-rent,  after  the  date  of 
the  will,  was  a  revocation  pro  tanto.     An  alteration  of  the  estate 
produces  this  effect.     4  Kent's  Com.  513,  &c.     Even  when  a 
contract  for  the  sale  of  land  was  rescinded,  it  was  to  be  a  revoca- 
r*9rm     ti°n>  *  Walton  v.  Walton,  (7  Johns.  Ch.  Rep.  258.) 

J  -That  after-acquired  real  estate  does  not  pass,  is  recog- 
nized in  the  recent  case  of  Crirard  v.  The  Mayor  $c.  of  Phila- 
delphia, (4  Rawle,  323.)  There  is  an  exception  of  the  case  of 
partition,  but  this  is  believed  to  be  the  only  exception,  1  Hoven- 
den's  notes  to  Vesey,  208,  &c. :  Attorney  General  v.  Vigor,  (8 
Ves.  281.)  Here  there  was  a  sale  of  land  in  fee,  and  the  cre- 
ation of  a  rent  charge,  which  was  a  new  estate,  4  Black.  Com. 
42  ;  Woodfall's  Land  &  Ten.  29,  note  ;  Co.  Litt.  47  (a),  143  (6), 
144,  Mr.  Margrave's  note  ;  19  Vin.  Abr.  105,  107,  title,  Reser- 
vation ;  6  Bac.  Abr.  22. 

Mr.  Binney,  for  the  defendant,  stated  that  the  counsel  on  both 
sides  were  of  opinion  that  the  will  was  revoked.  He  referred  in 
addition  to  the  cases  cited  by  Mr.  Read,  to  Livingston  v.  Liv- 
ingston, (3  Johns.  Ch.  Rep.  148.) 

The  opinion  of  the  Court  was  delivered  by 

SERGEANT,  J. — The  general  rule  in  relation  to  a  will  is,  that 
the  estate  disposed  of  must  remain  in  the  same  condition  till  the 
death  of  the  devisor  ;  if  the  estate  be  afterwards  altered  by  the 
testator,  so  that  it  no  longer  exists  as  he  devised  it,  the  will  is 
inoperative,  and  the  act  of  alteration  is  construed  a  revocation. 
Parting  with  a  portion  of  the  estate,  as  by  making  a  lease  for 
life  or  years,  or  creating  an  incumbrance  on  it,  as  by  mortgage, 
or  conveyance  for  payment  of  debts,  are  only  revocations  pro 
tanto.  2  Christ.  Black.  373.  So  a  conveyance  for  a  partition  is 
no  revocation.  Ib.  But  says  Lord  Hardwicke,  in  Sparrow  v. 
Hardcastle,  reported  in  the  note  to  7  T.  R.  416,  when  there  is  a 
complete  disposition  of  the  land  without  leaving  any  part  of  it  in 
the  devisor,  it  is  a  revocation.  If  a  man  make  a  will  devising 
land,  and  after  execute  a  feoffment  to  his  own  use,  it  is  a  revoca- 
tion of  the  will,  notwithstanding  it  is  in  point  of  law  the  old  use, 
and  will  descend  ex  parte  paterna  or  materna  as  before.  So  a 
feoffment  without  livery,  a  bargain  and  sale  not  enrolled,  or  any 
other  imperfect  conveyance  will  be  a  revocation,  because  it  im- 
ports an  intention  of  altering  the  condition  of  the  estate.  So, 
where  after  the  will,  the  testator  executes  any  legal  conveyance, 


1835.]  OF  PENNSYLVANIA.  250 

(Skerrett  «,  Burd.) 

it  is  a  revocation,  because  the  estate  is  gone,  and  the  will  has  lost 
the  subject  of  ifs  operation.  If  a  man  seised  of  real  estate  devise 
it,  and  after  convey  the  legal  estate,  though  there  be  only  a  par- 
tial declaration  of  trust,  yet  as  he  has  granted  the  whole  estate,  it 
is  a  revocation  of  the  will.  So  if  a  man  seized  of  a  legal  estate 
makes  his  will,  and  then  conveys  the  legal  estate  to  another,  in 
trust  for  himself,  it  is  a  revocation.  Parsons  v.  Freeman,  (7 
Bac.  Ab.  370).  These  are  the  legal  principles,  which  have  been 
determined,  and  they  have  been  inflexibly  maintained  in  analagous 
cases.  4  Kent's  Com.  513. 

A  conveyance  by  the  testator  in  fee  simple,  of  a  lot  of  ground 
which  he  had  devised,  reserving  a  ground  rent  in  lieu  of  the  lot 
*  itself,  is  a  complete  disposition  of  his  estate  in  the  lot. 
It  is  a  substitution  of  an  incorporeal  hereditament  issu- 
ing  out  of  the  ground,  usually,  as  in  this  case,  with  clauses  of  dis- 
tress and  condition  of  re-entry  to  enforce  the  payment  of  the  rent. 
On  the  other  hand  there  is  a  stipulation  for  redemption  within  a 
certain  time,  which  when  it  happens,  turns  it  into  a  sale,  and 
renders  the  consideration  money  personal  property  to  those  who 
receive  it.  These  reservations  and  clauses  preserve  to  the 
grantor  no  residuary  estate  in  the  land ;  they  create  new  services 
and  rights  instead  of  it.  It  somewhat  resembles  the  case  of  #n 
exchange  of  lands,  which  has  been  held  to  operate  as  a  revocation, 
so  as  to  exclude  the  land  taken  in  exchange,  from  the  operation 
of  a  prior  devise.  Being  then  an  entire  transfer  and  disposal  of 
the  estate  in  the  land,  there  is  nothing  left  for  the  devise  of  the 
lots  of  ground  to  operate  on,  and  the  will  is  so  far  revoked  by  the 
subsequent  acts  of  the  testator.  That  the  ground  rents  thus 
created  could  not  pass  by  the  residuary  bequest,  as  after-acquired 
property,  under  our  act  of  Assembly,  in  force  when  the  will  was 
made,  results  from  the  decision  in  The  City  of  Philadelphia  v. 
G-irard,  (4  Rawle,  323).* 

It  is,  therefore,  the  opinion  of  the  Court,  that  John  Shields 
died  intestate  as  to  the  two  ground  rents  in  question.  That  they 
descended  to  his  three  brothers,  Thomas,  Robert,  and  David,  in 
fee  simple,  as  tenants  in  common,  subject  to  the  widow's  life  es- 
tate in  a  moiety.  That  the  conveyances  of  the  widow  and  two  of 
the  brothers,  Thomas  and  David,  vested  in  the  plaintiff  two-third 
parts  of  the  said  ground  rents  in  fee  simple,  and  an  estate  for  the 
widow's  life  in  a  moiety  of  the  other  third  part. 

Judgment  for  the  plaintiff  according  to  case  stated. 

Cited  by  Counsel,  2  Barr,  169  ;  4  Id.  90 ;  1  Jones,  431 ;  7  Harris,  68 ; 
4  Casey,  30  ;  7  P.  F.  Smith,  211. 

Cited  by  the  Court,  2  Wharton,  111 ;  5  Watts  &  Sergeant,  199;  8  Id. 
127 ;  2  Harris,  460 ;  4  Wright,  224. 

See  also  5  Watts,  53  ;  4  Barr,  88. 

*See  post,  503. 


252  SUPREME  COURT  [Dec.  Term, 

[*252]  [* PHILADELPHIA,  FEBRUARY  6,  1836.] 

BURR  ayainst  SIM  and  Others. 

IN   ERROR. 

1.  A  testator  directed  his  executors  to  sell  all  his  real  estate,  goods  and 
chattels,  and  to  pay  the  proceeds,  together  with  all  the  moneys  coming 
to  their  hands  after  the  payment  of  his  just  debts,  funeral  expenses  and 
legacies,  to  two  persons  whom  he  appointed  guardians  for  his  son,  and 
whom  he  directed  to  invest  the  money  and  to  apply  the  interest  thereof 
to  the  maintenance  and  education  of  his  son  during  his  minority,  and  to 
pay  the  principal  to  him  on  his  arriving  at  the  age  of  twenty-one  years. 
But  in  case  he  should  die  before  his  arrival  at  that  age,  he  gave  the  same 
to  the  children  of  a  brother  and  sister  in  Scotland  ;  in  the  same  clause 
with  the  directions  to  the  executors  to  sell,  he  declared  his  will  to  be 
that  his  houses  should  be  rented  out  "until  the  same  shall  be  sold  as 
aforesaid."  The  houses  were  not  in  fact  sold.  The  son  of  the  testator 
arrived  at  the  age  of  twenty-one,  and  died  about  a  year  thereafter,  hav- 
ing made  a  will  in  which  he  devised  one  of  the  houses  to  A.,  "her  heirs ' 
and  assigns,"  and  the  other  to  B.  without  words  of  inheritance  :  Held, 
1 .  That  the  real  estate  of  the  testator  was  in  equity  converted  into  per- 
sonal, by  the  directions  of  his  will,  and  continued  so  during  the  minority 
of  the  son  :  2.  That  the  son  was  to  be  considered  as  having  elected  to 
take  the  houses  as  real  estate,  and  that  B.  took  only  a  life  estate  in  the 
h»use  devised  to  him.  3.  That  the  election  to  take  as  real  estate  oper- 
ated as  a  new  acquisition,  and  not  to  cast  the  descent  upon  him  as  from 
the  part  of  his  father,  and  consequently,  that  the  reversion  in  fee  of  the 
house  devised  to  B.  vested  in  the  heirs  ex parte  materna  as  well  as  those 
ex  parte  paterna. 

2..  A  testator  began  his  will  thus,  "I,  A.  C.  C.  feel  myself  in  declining 
state  of  body,  and  knowing  the  certainty  of  death,  and  not  knowing  the 
time  thereof:"  after  certain  bequests  he  gave  to  A.  "or  to  her  heirs  or 
assigns  one  three-story  brick  house  in  Arch  street,  No.  63.  Further  I 
icish  to  give  to  W.  C.  one  other  three-story  house  in  Arch  street,  No.  65," 
the  will  concluding  thus,  and  not  being  signed  by  the  testator :  Held 
that  W.  C.  took  only  a  life  estate  in  the  house  devised  to  him. 

THIS  was  a  writ  of  error  to  the  District  Court  for  the  City  and 
County  of  Philadelphia,  to  remove  the  record  of  an  action  of 
ejectment  brought  by  George  Sim,  Margaret  Sim,  Jean  Ander- 
son, and  Peter  Nicholson,  ngainst  Postrema  Burr,  to  recover  pos- 
session of  a  house  and  lot  of  ground  situate  on  the  north  side  of 
Mulberry  (or  Arcn)  street,  between  Second  and  Third  streets,  in 
'the  City  of  Philadelphia. 

The  plaintiffs  below  claimed  as  heirs  of  a  certain  Archibald 
Cummings  Craig,  who  died  seized  or  possessed  of  the  premises  on 
the  5th  of  September,  1797,  and  whose  title  to  the  same  arose  as 
follows : 

George  Craig,  the  father  of  the  said  Archibald  Cummings 
Craig,  died  seized  of  the  premises,  with  other  real  estate  situate 
in  the  City  of  Philadelphia  and  elsewhere :  having  made  his  last 


1835.]  OF  PENNSYLVANIA.  252 

(Burr  v.  Sim. ) 

will  and  testament  dated  the  17th  day  of  June,  1782 ;  in  which, 
after  directing  the  payment  of  all  his  just  dehts  and  funeral  ex- 
penses by  his  executors,  and  after  giving  his  wife  a  legacy  of 
.£250,  he  made  the  following  provision : 

"Item.  My  will  is,  and  I  do  hereby  authorize,  impower  and 
direct  my  executors  hereafter  named,  and  the  survivor  of  them 
to  *  grant,  bargain,  and  sell,  either  at  public  or  private 
sale,  and  as  such  time  or  times  as  they  or  the  survivor 
of  them  shall  think  most  convenient  and  proper,  all  those  my  two 
messuages  or  tenements,  and  lots  of  ground  situate  in  the  City  of 
Philadelphia,  and  my  house  and  lot  in  the  borough  of  Lancaster, 
and  to  make,  seal,  execute,  and  deliver  a  deed  or  deeds,  valid  in 
the  law,  for  the  same,  to  the  purchaser  or  purchasers  thereof,  his, 
her,  or  their  heirs  and  assigns  forever;  and  my  will  further  is,  that 
my  said  executors  or  the  survivor  of  them,  do  sell  either  at  public 
or  private  sale,  as  may  be  thought  most  proper,  all  the  rest  and 
remainder  of  my  goods  and  chattels ;  and  the  money  arising  by 
.the  sale  of  my  said  real  and  personal  estate,  together  with  all  other 
moneys  coming  to  their  hands,  after  the  payment  of  my  just  debts, 
funeral  expenses,  the  legacies  herein  bequeathed,  with  the  inci- 
dental expenses  and  a  full  compensation  for  their  care  and  trouble, 
my  will  is,  and  I  do  hereby  order  and  direct  my  said  executors  to 
pay  into  the  hands  of  my  friends  William  Craig  and  William 
Wells  of  the  City  of  Philadelphia,  or  the  survivor  of  them,  to  be 
applied  and  disposed  of  as  hereinafter  mentioned,  whose  receipt 
to  my  said  executors,  shall  sufficiently  requit,  release  and  dis- 
charge them;  and  my  will  is,  that  my  houses  be  rented  ont  until 
the  same  shall  be  so  sold  as  aforesaid. 

"  Item.  I  do  hereby  nomieate,  constitute,  and  appoint  my 
said  friends,  William  Craig  and  William  Wells,  to  be  guardians 
over  the  person  and  estate  of  my  son  Archibald  Cummings  Craig, 
during  his  minority,  and  I  do  hereby  authorize,  impower,  and 
direct  the  said  William  Craig  and  William  Wells,  and  the  sur- 
vivor of  them,  to  put  and  place  out  the  money,  so  to  be  paid  to 
them  by  my  executors,  at  interest,  on  security,  as  they  or  the 
survivor  shall  deem  good,  from  time  to  time,  but  at  the  sole  risk 
of  my  said  son,  and  shall  apply  the  interest  thereof,  to  and  for 
the  maintenance,  education  and  clothing  of  my  said  son  during 
his  minority  ;  and  upon  his  my  said  son's  arrival  to  twenty-one 
years. of  age,  to  pay  over  all  the  moneys  in  their  hands,  after  de- 
ducting all  necessary  expenses  and  a  full  compensation  for  their 
care  and  trouble,  unto  my  said  son,  to  whom  I  give  and  bequeath 
the  same  when  he  arrives  at  the  age  of  twenty-one  years,  under 
the  restrictions  hereafter  mentioned.  But  in  case  my  said  son 
shall  die  before  his  arrival  to  that  age  without  leaving  lawful  issue, 
then  I  give  and  bequeath  the  same  to  the  children  of  my  brother, 


253  SUPREME  COURT  [Dec.  Term, 

(Burr  «.  Sim.) 

Archibald  Craig,  and  of  my  sister,  Jane  Sim,  deceased,  of  that 
part  of  Great  Britain  called  Scotland,  to  be  equally  divided  be- 
tween them  part  and  share  alike." 

He  then  directed  the  emancipation  of  certain  negro  slaves,  and 
proceeded  as  follows: 

"  Whereas  I  have  some  moneys  in  the  stocks  or  funds  in  Eng- 
land under  the  care  and  management  of  Messrs.  Mildred  and 
Roberts,  merchants  in  London,  which  yield  an  annual  interest,  now 
mj  will  *  and  mind  is,  that  there  be  paid  out  of  the 
interest  thereof  to  the  children  of  my  sister,  Jane  Sim, 
deceased,  the  sum  of  thirty  pounds  apiece,  the  first  payment 
thereof  is  to  be  made  within  four  years  after  my  decease,  to  the 
youngest  of  the  said  children,  and  the  next  payment  to  the  next 
younger  child,  a  twelvemonth  after,  and  in  the  same  mariner  an- 
nually till  they  shall  each  of  them  have  been  paid  thirty  pounds, 
and  the  remainder  of  the  said  money  I  give  and  bequeath  to  my 
said  son,  Archibald  Cummings  Craig,  if  he  shall  live  to  attain  the 
age  of  twenty-one  years,  but  if  he  dies  before  that  time,  without 
leaving  lawful  issue,  then  I  give  fifty  pounds  thereof  to  and  for 
the  use  of  Bedrnan's  house  in  the  borough  of  Elgin,  in  the  shire 
of  Murray,  in  Scotland,  to  be  paid  to  the  overseers  or  managers 
of  the  said  house  ;  and  other  fifty  pounds  thereof  I  give  to  and 
for  the  use  of  the  poor  of  the  Episcopal  Meeting  in  the  said 
borough  of  Elgin,  to  be  paid  to  the  corporation  of  the  said  bor- 
ough, and  by  the  said  corporation  placed  out  at  interest,  which 
interest  is  to  be  paid  yearly  to  the  said  poor  on  Christmas  day 
forever,  and  the  remainder  of  said  moneys  I  give  and  bequeath 
unto  the  children  of  my  said  brother  and  sister,  equally  to  bo 
divided  between  them. 

'•Item.  .My  will  and  mind  is,  and  I  do  order  the  guardians 
aforesaid,  to  take  my  said  son  under  their  care  and  management 
and  send  him  when  he  is  twelve  years  old  to  be  educated  at  Old 
Aberdeen  in  Scotland ;  but  if  his  mother  refuses  to  deliver  him 
up  to  the  said  guardians,  or  he  himself  refuses  to  go  under  their 
care  and  management,  then  and  in  either  case,  my  will  is,  and  I 
hereby  declare  that  he  my  said  son  shall  be  entitled  to  and  receive 
no  more  than  only  one  half  part  of  what  I  have  hereinbefore  in- 
tended to  give  him,  and  the  other  half  part  thereof  I  give  aud 
bequeath  to  the  children  of  my  brother  and  sister  aforesaid, 
equally  to  be  divided  between  them. 

"  Lastly,  I  nominate,  constitute  and  appoint  my  friends  Henry 
Hall  Graham  of  the  borough  of  Chester,  and  Richard  Riley  of 
the  town  of  Chichester,  sole  executors  of  this  my  last  will  and 
testament,  hereby  revoking  all  former  wills  by  me  made,  and  de- 
claring this  and  no  other  to  be  my  last  will  and  testament." 

The  executors  of  George  Craig  never  actually  sold  the  premises 


1835.]  OF  PENNSYLVANIA.  254 

(Burr®.  Sim.) 

in  question,  and  were  both  dead  at  the  commencement  of  this 
ejectment.  Archibald  Cummings  Craig,  the  son  of  the  testator 
was  sent  when  he  was  twelve  years  old  to  Aberdeen,  in  Scotland, 
where  he  received  his  education ;  and  thence  returned  to  Penn- 
sylvania. He  arrived  at  the  age  of  21  years  some  time  in  the 
year  1796.  On  the  5th  of  September,  1797,  being  absent  from 
home  and  in  the  Sta'te  of  New  Jersey,  he  made  a  will  in  the 
following  words: 

"  In  the  name  of  God,  amen.  I  Archd.  Cumiss  Craig  feel  my- 
self in  a  declinening  state  of  body,  and  knowing  the  certainty 
of  death,  and  not  knowing  the  time  thereof  the  funds 

in  Eng. 

"My  funds  I  have  in  the  Bank  of  England  .1  wold  wish  to 
devise  *unto  John  Creigh  son  of  Archb.  Gregg  of  Eegin  r*9rr-i 
County  of  Murough  in  the  kingdom  of  Scotland,  and  *•  J 
unto  Mr.  Anderson,  son  in  law  unto  the  aford.  Archibald  Craig 
an  inhabitant  of  Scotland,  to  be  equal  dd.  between  the 
of  sd.  Jo.  Creg.  and  sd.  Mr.  Anderson. 

"  Likewise  I  wold  give  onto  my  loving  frnd  Joseph  Louriat  of 
the  city  of  Philadelphia  six  hundred  dollars. 

"  Further  I  wish  to  give  unto  Mesrgs.  Martha  Ross  wife  of 
Capt.  David  Ross  of  the  citty  of  Philadelphia,  or  to  her  heirs  or 
assigns,  one  three  story  brick  house  in  Arch  street,  No.  63. 

"  Further  I  wish  to  give  unto  Doct.  William  Gurry  of  the 
citty  of  Philada.,  one  other  3  story  house  in  Arch  stt,  No.  65." 

The  three  story  house  in  Arch  street,  last  mentioned,  was 
the  property  in  dispute  in  this  ejectment.  The  probate  was  as 
follows : 

"  Henry  Disborough  of  Somerset  county,  and  state  of  New 
Jersey,  being  duly  sworn  on  the  Holy  Evangelist  of  Almighty 
God,  did  depose  and  say,  that  Archibald  C.  Craig  of  Philadel- 
phia, died  at  this  deponent's  house  in  sd.  county  of  Somerset  on 
the  fifth  of  this  instant.  That  on  the  day  of  his  death  the  within 
writing  was  wrote  part  by  the  deceased  and  part  by  this  deponent 
at  the  request  of  the  deceased,  and  that  the  bequests  therein  set 
down  and  wrote  by  this  deponent,  were  made  in  the  hearing  of 
the  said  deceased  and  acknowledged  by  the  deceased  to  be  wrote 
agreeably  to  his  wishes,  and  that  at  the  time  the  bequests  were 
read  to  the  said  Archibald  C.  Craig,  he  the  sd.  Craig  was  of 
sound  and  disposing  mind  and  memory  as  far  as  this  deponent 
knows,  and  as  he  verily  believes.  This  deponent  further  says 
that  he  asked  the  deceased  as  to  further  disposition  of  his  estate, 
to  which  he  replied,  that  as  to  the  bequests  already  set  down  he 
had  made  up  his  mind  upon  them  for  some  time  past,  but  as  to 
further  bequests  he  had  not  fully  made  up  his  mind  upon  them, 
and  must  take  some  time  to  think  upon  the  subject ;  upon  which 


255  SUPREME  COURT  [Dee.  Term, 

(Burr  v.  Sim.) 

this  deponent  left  the  room  for  some  time,  and  upon  his  return 
found  the  deceased,  as  he  thought,  incapable  of  proceeding  any 
further  on  business. 

HENRY  DISBROW. 
Sworn  at  Bedminster  in  Somer- 
set county,  the  13th  day  of 
September,  A.  D.  1797,  be- 
fore me,  JOHN  MEHELM, 

Surrogate  of  sd.  county. 

"Henry  Disborough  junior,  being  duly  sworn  on  the  Holy 
Evangelists  of  Almighty  God  did  depose  and  say,  that  he  was 
present  in  the  room  where  Archibald  C.  Craig  deed.,  lay  sick  on 
the  fifth  instant;  and  heard  Henry  Disborough  senr.  read  the 
bequests  in  the  within  writing,  to  the  deceased,  and  heard  the 
r*o'-p-|  said  deceased  say  *that  they  were  wrote  agreeably  to 
J  his  wishes  and  will,  and  at  that  time  the  sd.  deceased 
was  of  sound  and  disposing  mind  and  memory  as  far  as  this  depo- 
nent knows,  and  as  he  verily  believes. 

HENRY  DISBOROUGH,  JR. 
Sworn  at  Bedminster,  in  Somer- 
set county,  the  13th   day  of 
September,  A.  D.  1797,  be- 
fore me,  JOHN  MEHELM, 

Surrogate." 

Archibald  Cummings  Craig,  died  unmarried  and  without  issue. 
On  the  part  of  his  father,  George  Craig,  his  next  of  kin  were 
four  first  cousins,  the  issue  of  a  paternal  uncle  and  aunt.  These, 
or  the  issue  of  such  as  were  since  deceased,  were  the  plaintiffs  in 
this  ejectment.  On  the  part  of  his  mother  he  left  two  first  cous- 
ins, viz. :  1st,  John  Ewer  Sword;  2d,  Ann  Sword  married  to 
Dr.  Nathan  Dorsey,  and  the  issue  of  another  first  cousin,  viz. : 
James  W.  Sproat.  John  Ewer  Sword,  and  Ann  Dorsey  died 
before  the  commencement  of  this  suit. 

Dr.  Wm.  Currie,  the  devisee  named  in  the  will  of  Archibald  • 
Cummings  Craig,  died  in  the  year  1828,  intestate,  leaving  two 
children,  viz.  :  1st,  Isabella,  who  married  J.  G.  Williams.  2d, 
William  Currie,  who  conveyed  all  his  interest  in  the  premises  to 
the  said  J.  G.  Williams.  The  defendant,  Postrema  Burr,  came 
into  possession  during  the  lifetime  of  Dr.  Currie,  as  his  tenant. 
The  said  J.  G.  Williams  was  admitted  by  the  Court  to  defend  as 
landlord  of  the  defendant. 

The  foregoing  circumstances  having  been  proved  on  the  trial, 
the  counsel  for  the  defendants  requested  the  Court  to  charge  the 

JUI7> 


1835.]  OF  PENNSYLVANIA.  256 

(Burr  v.  Sim.) 

1.  That  by  the  will  of  Archibald  C.  Craig,  Dr.  Wm.  Currie 
took  a  fee  simple  in  the  house  and  lot  devised  to  him. 

2.  That  by  the  will  of  George  Craig,  the  real  estate  devised  to 
his  executors  to  be  sold,  became  converted  into  personal  estate, 
and  as  such,  vested  in  Archibald  C.  Craig,  and  was  transmissible 
as  such. 

3.  That  by  the  will  of  Archibald  C.  Craig,  the  property  in 
dispute  passed  as  personal  property  to  Dr.  William  Currie,  and 
therefore  that  he  took  an  absolute  interest  in  it. 

4.  That  if  at  the  death  of  Archibald  Craig,  the  property  in 
dispute  is  to  be  considered  as  real  estate,  yet  it  is  to  be  regarded 
as  a  new  acquisition  by  him,  and  not  as  having  descended  to  him, 
or  having  been  devised  to  him  as  real  estate  by  his  father,  and 
therefore  under  the  act  of  1794,  passed  to  this  heirs  on  the  part  of 
his  mother,  as  well  as  to  the  heirs  on  the  part  of  his  father,  if  Dr. 
Currie  took  only  a  life  estate. 

The  judge,  however,  delivered  his  opinion  to  the  jury, 

1.  That  Dr.  William  Currie  took   only  a  life  estate  in  the 
premises  under  the  will  of  Archibald  C.  Craig,  and  not  a  fee 
simple. 

*  2.  That  the  real  estate  directed  by  the  will  of  George  r^o^-i 
Craig  to  be  sold  by  his  executors,  was  not  converted  into  *- 
personal  estate,  nor  as  such  did  it  vest  in  Archibald  C.  Craig,  nor 
did  the  property  in  dispute  pass  by  the  will  of  Archibald  C.  Craig 
to  Doctor  William  Currie  as  personal  property,  nor  did  the  said 
Dr.  Currie  take  an  absolute  interest  in  it  .as  such. 

3.  That  the  premises  in  dispute  came  to  Archibald  C.  Craig  by 
descent  from  his  father,  George  Craig ;  and  upon  the  death  of  the 
said  Archibald,  descended,  subject  to  the  life  estate  of  Dr.  Currie, 
to  his  next  o£  kin  on  the  part  of  his  father. 

4.  That  no  interest  in  these  premises  ever  vested  in  the  next  of 
kin  of  the  said  Archibald,  on  the  part  of  his  mother. 

5.  That  the  plaintiffs  in  this  suit  are  entitled  to,  and  must  re- 
cover the  whole  of  the  house  and  lot  in  Arch  street. 

Whereupon  the  defendants  took  a  writ  of  error:  and  on  the 
return  of  the  record  assigned  the  following  errors,  viz. : 

"1.  That  the  Court  erred  in  charging  the  jury.  '  that  Dr.  Wil- 
liam Currie  took  only  a  life  estate  in  the  premises  under  the  will 
of  Archibald  C.  Craig,  and  not  a  fee  simple.' 

2.  That  the  Court  erred  in  charging  the  jury,  '  that  the  real 
estate  directed  by  the  will  of  George  Craig  to  be  sold  by  his  exe- 
cutors, was  not  converted  into  personal  estate,  nor  as  such  did  it 
vest  in  Archibald  C.  Craig,  nor  did  the  property  in  dispute  pass 
by  the  will  of  Archibald  C.  Craig  to  Dr.  William  Currie  as  per- 
sonal property,  nor  did  the  said  Dr.  Currie  take  an  absolute  inter- 
est in  it  as  such.' 


257  SUPREME  COURT  [Dec.  Term, 

(Burr  v.  Sim.) 

3.  That  the  Court  erred  in  charging  the  jury,  '  that  the  prem- 
ises in  dispute  came  to  Archibald  C.  Craig  by  descent  from  hia 
father  George  Craig,  and  upon  the  death  of  the  said  Archibald, 
descended,  subject  to  the  life  estate  of  Dr.  Currie,  to  the  next  of 
kin  on  the  part  of  his  father.' 

4.  That  the  Court  erred  in  charging  the  jury,  '  that  no  inter- 
est in  these  premises  ever  vested  in  the  next  of  kin  of  the  said 
Archibald  on  the  part  of  his  mother.' 

5.  That  the  Court  erred  in  charging  the  jury  '  that  the  plain- 
tiffs in  this  suit  are  entitled  to,  and  must  recover  the  whole  of  the 
house  and  lot  in  Arch  street.' ': 

Mr.  WJtarton,  for  the  heirs  of  Dr.  Currie,  argued — 

1.  That  Dr.  Currie  took  a  fee  in  the  premises.     This  is  the 
case  of  a  will  imperfectly  expressed,  though  sufficient  appears  to 
manifest  the  intent  of  the  testator.     The  preamble  is  incomplete ; 
so  is  evidently  the  last  sentence.     That  the  Courts  have  power  to 
supply  words  to  complete  the  sense  of  the  testator,  is  proved  by 
many  cases,  most  of  which  are  cited  in  the  notes  to  Mr.  Jarman's 
f*2^81     edition  °f  Powell  *on  Devises,  p.  374.     This  is  a  fair 

-"  case  for  the  exercise  of  this  power,  by  completing  the 
preamble  as  the  testator  probably  intended,  with  words  of  general 
disposition,  which  would  have  been  held  to  enlarge  an  estate  into  a 
fee,  which  otherwise  would  have  been  only  an  estate  for  life. 
French  v.  M'llhenny,  (2  Binn.  13  ;)  Lambert's  Lessee  v.  Paine, 
(3  Cranch,  96  ;)  Powell,  370,  &c.  In  the  recent  case  of  Neide 
v.  Neide,  (4  Rawl  75,)  the  testator  devised  to  his  son  J.  N.,  his 
"  late  purchase  from  E.  C.,  as  also  four  ares  of  Woodland,  being 
in  a  corner,"  &c.  The  word  also  was  held  by  the  Court  to  con- 
nect the  "  late  purchase,"  with  the  4  acres  of  woodland,  so  as  to 
give  a  fee  in  the  latter.  Here  the  word  further  may  be  allowed 
the  same  effect. 

2.  By  the  will  of  George  Craig,  the  premises  were  directed  to 
be  sold,  and  were  in  equity  considered  to  be  actually  converted 
into  personal  property ;  and  as  such,  they  vested  in  A.  C.  Craig,  and 
passed  by  his  will  as  personal  property  to  Dr.  Currie,  who,  con- 
sequently took  an  absolute  interest  in  them  ;  words  of  perpetuity 
not  being  necessary  in  gifts  of  personalty.      The  rule  of  equity 
on  this  subject  is  clearly  established  (Leigh  &  Dalzell  on  Conver- 
sion, p.  48,  &c.)  and  has  been  recognized  in  this  country.    Craiy 
v.  Leslie,  (3  Wheaton,  563;)  Allison  v.  Wilson,  <13  Serg.  &  R. 
330  ;)  Morrow  v.  Brenzier,  (2  Rawle,  185.)     Taking  it  then  as 
clear,  that  the  positive  directions  of  this  will  effected  a  conver- 
sion, it  is  necessary  for  the  other  side  to  show  affirmatively,  that 
there  has  been  a  reconversion.    The  onus  lies  on  them.     Head  v. 
Newdiyate,   (2  Mer.  531.)     The  reconversion  could  not  have 


1835.]  OF  PENNSYLVANIA. 

(Burr  V.  Sim.) 

taken  place  during  the  minority  of  A.  C.  Craig,  since  as  an  in- 
fant, he  had  not  the  power.  Earlom  v.  Saunders,  (Amb.  241 ;) 
Van  v.  Barnett,  (19  Ves.  109.)  Nor  had  his  guardian.  Hook 
v.  Worth.  (1  Ves.  Sen.  460  ;)  Leigh  &  Dalzell,  149.  Did  he 
elect  after  he  came  of  age  ?  He  was  9  years  old  at  the  death  of 
his  father,  and  came  of  age  about  one  year  before  his  own  death. 
Actual  possession  of  the  premises,  as  real  estate,  was  not  proved; 
if  it  had  been  proved,  it  would  not  have  been  sufficient,  consider- 
ing the  short  time  he  lived  after  21.  Dauers  v.  Polices,  (1  Eq. 
Gas.  Abr.  396.)  In  Kirkman  v.  Mills,  (13  Ves.  338,)  the 
Master  of  the  Rolls  was  of  opinion,  that  the  occupation  of  land  for 
two  years,  was  too  short  to  presume  an  election.  In  AsJiby  v. 
Palmer,  (1  Mer.  296,)  the  property  continued  converted  in  law, 
though  it  was  not  so  in  fact,  for  43  years.  In  Morrow  v.  Bren- 
izer,  C.  J.  Gibson,  intimates  that  a  reconveyance  is  necessary. 
The  will  of  A.  C.  Craig,  which  will  be  relied  upon  on  the  other 
side,  is  by  no  means  conclusive.  It  was  made  under  circumstances 
which  seem  to  exclude  the  idea  of  an  intention  to  reconvert ;  and 
the  description  of  the  property,  as  "a  house,"  &c.  was  unavoid- 
able, whatever  were  his  intentions  ;  as  it  had  not  been  converted 
in  fact.  If  he  had  held  it  on  a  lease  for  1000  years  it  would  still 
have  been  personal  estate,  although  in  his  will  he  should  have 
spoken  of  it  as  real. 

*  Mr.  •/.  M.  Read  for  the  heirs  ex  parte  materna,  con-  r*O£cn 
tended  that  A.  C.  Craig,  elected  to  take  the  premises  as  "* 
real  estate,  on  arriving  at  full  age,  and,  as  such,  that  they  were 
to  be  considered  a  new  acquisition,  which,  by  the  laws  of  Penn- 
sylvania, went,  upon  his  death,  to  his  next  of  kin  generally. 
The  12th  section  of  the  Act  of  1794,  regulates  the  course  of  de- 
scent in  a  case  like  the  present.  In  Bevan  v.  Taylor,  (7  Serg. 
&  R.  403,)  Judge  Duncan  who  delivered  the  opinion  of  the  Court, 
lays  it  down,  that  in  case  of  an  acquisition  not  coming  on  the  part 
of  the  father  or  mother,  the  estate  goes  to  all  the  next  of  kin.  It 
is  settled,  that  in  all  omitted  cases,  the  heir  at  common  law  takes, 
Cresoe  v.  Laidley,  (2  Binn.  285.)  The  estate  must  have  come 
as  real  estate  from  the  father.  Now,  the  will  of  George  Craig 
directs  the  sale  of  the  property  at  all  events  ;  and  this  is  the  case 
of  a  conversation  out  and  out.  Jeremy  on  Equity,  530  ;  1  Meri- 
vale,  296,  Craig  v.  Leslie  ;  Cruise  v.  Barley,  (3  Peere  Wms. 
22;)  Duroure'v.  Motteoux,  (1  Ves.  Sen.  320;)  Mallabar  v. 
Mallabar,  (Cas.  Temp.  Tallbot,  79  ;)  Yates  v.  Compton,  (2 
Peere  Wms.  308  ;)  Doughty  v.  Bull,  (2  P.  Wms.  320.)  In 
Allison  v.  Wilson,  (13  Serg.  &  R.  330,)  it  was  held  that  a 
judgment  did  not  bind  the  interest  of  an  heir  under  circum- 
stances like  the  present.  The  same  doctrine  was  maintained  in 


259  SUPREME  COURT  [Dec.  Term, 

(Burr  0.  Sim.) 

Morroiv  v.  Brenizer,  (2  Rawle,  189  ;)  and  C.  J.  Gibson  there 
intimates  a  strong  opinion  that  the  descent  was  broken.  In  a 
still  later  case,  the  same  view  is  taken.  Hartman's  Estate,  (4 
Rawle,  39.)  In  Simpson  v.  Hall,  (4  Serg.  &  R.  337,)  the  father 
had  made  a  settlement  on  land  ;  and  the  money  paid  for  patenting 
was  derived  from  his  estate,  yet  it  was  held  to  be  a  new  acqui- 
sition. That  this  is  not  a  mere  naked  power  is  evident.  There 
was  an  express  direction,  followed  by  a  trust.  Franklin  v.  Os- 
yood,  (2  Johns.  Ch.  Rep.  20  ;  14  Johns.  Rep.  527  ;)  7  Brown 
P.  C.  559  ;  Sugden  on  Powers,  393.  It  is  settled  by  the  authori- 
ties, that  no  elecction  could  have  been  made  by  or  for  A.  C. 
Craig,  until  he  arrived  at  full  age  ;  that  it  then  came  to  him  as 
personal  property,  and  it  seems  to  follow  that  his  election  to  take 
it  as  real  estate  was  in  the  nature  of  a  purchase. 

Mr.  Scott  and  Mr.  Bradford  for  the  heirs  ex  parte  paterna. 

1.  Dr.  Currie  took  only  a  life  estate.     This  will  contains  none 
of  the  expressions  which  have  been  relied  upon  in  other  cases,  to 
give  the  fee.     The  use  of  the  word  heirs  in  the  fourth  clause, 
shows  that  the  testator  knew  what  was  necessary  for  the  purpose. 
The  word  further  means  no  more  than  item.     Ferres  v.  Smith, 
(17  Johns'.  Rep.  221  ;)  Mu-dqe  v.  Blight  >  Cowper,  35*2  ;)  Buzby 
v.  Buzby,  (1  Dall.  226  ;)  Clayton  v.  Clayton,  (3  Binn.  476  ;) 
Steele  v.  Thompson,  (14  Serg.  &  R.  85  ;)  Evans  v.  Knorr,  (4 
Rawle,  66.) 

2.  The  doctine  of  conversion  is  a  creature  of  equity.     It  was 
introduced  to  prevent  injustice  and  to  carry  out  the  designs  of 
testators  and  where  a  contrary  result  would  be  produced,  the 


T*2601  *  wn*ch  considers  land  as  land,  will  be  left  to  itself. 

There  is  no  case  in  which  this  doctrine  has  been  inter- 
posed, except  to  sustain  a  plain  general  intent.  Now  the  will 
of  George  Craig  shows  an  evident  desire  to  favor  his  Scottish 
relations.  The  object  of  the  sale  was  to  enable  them  to  take  as 
legatees  ;  since,  as  aliens,  they  could  not  take  real  estate.  This 
Court  is  now  asked  to  set  up  a  fiction,  for  the  purpose  of  letting 
in  persons  who  were  strangers  in  blood  to  the  testator.  Now  it 
is  settled  that  where  the  object  of  the  sale  fails,  equity  will  not 
compel  the  execution  of  the  power.  Leiyh  v.  Dalzell,  117,  119, 
and  the  cases  cited  ;  Hewett  v.  Wriyht,  (1  Bro.  C.  C.  86  ;) 
Smith's  Lessee  v.  Folwell,  (1  Binn.  558  ;)  Jackson  v.  Jansen, 
(6  Johns.  Rep.  73  ;)  Clark  v.  Campbell,  (  2  Rawle,  215  ;)  1  Bro. 
C.  C.  226.  This  was  a  mere  naked  power,  created  too  before 
the  passage  of  the  act  of  1792.  The  fee  descended  to  the  heir 
at  law,  subject  to  the  power.  \f\  Allison  v.  Wilson,  the  will  was 
made  after  the  act  of  1792.  So  in  Morrow  v.  Brenizer.  There 
is  nothing  devised  to  the  executors  by  this  will.  The  distinction 


1835.]  OF  PENNSYLVANIA.  260 


.  Sim.) 

between  a  devise  of  the  estate  to  the  executors,  and  a  devise  of 
an  authority  to  sell,  is  still  maintained,  notwithstanding  some 
efforts  to  impugn  it.  Co.  Litt.  113,  (a;)  Sugden  on  Powers,  106, 
459,  &c.;  1  Vernon,  204  ;  Lancaster  v.  Thornton,  (2  Burr. 
1027  ;  Roper  v.  Radcliff,  9  Mod.  167  ;)  Plunkett  v.  Penson, 
(2  Atkyns,  291  ;)  3d  East,  558  ;  1  Caines,  16.  Mr.  Sugden  lays 
it  down  expressly,  that  "  where  a  power  is  given  by  a  will  to 
trustees  to  sell  an  estate  and  apply  the  money  upon  trusts,  the 
power  is  in  the  nature  of  a  trust.  The  legal  estate,  until  the  exe- 
cution of  the  power  descends  to  the  heir  at  law."  [ROGERS,  J. 
There  is  a  direction  in  this  will  that  the  houses  shall  be  rented 
until  a  sale  is  made  ;  does  this  not,  coupled  with  the  direction  to 
sell,  seem  to  give  the  estate  to  the  executors  ?]  In  Carpenter  v. 
Collins,  (Yelverton,  73,)  the  executors  were  directed  to  rent  the 
real  estate,  &c.,  yet  the  real  estate  was  held  to  be  in  the  heir. 
Then,  if  the  executors  had  only  a  power,  and  there  was  no  de- 
vise of  the  land  to  any  one,  the  heir  was  certainly  in  by  descent. 
Co.  Litt.  §  169;  Hunt  v.  Rousmaniere,  (8  Wheaton,  174;) 
Crabtree  v.  Bramble,  (3  Atkyns,  675  ;)  Fonblanque,  (by  Lau- 
satt,)  320,  note  v  ;  Worthington  on  Wills,  115.  The  case  of  Hart- 
man's  Estate,  (4  Rawle,  39,)  cited  on  the  other  side,  confirms 
the  position,  since  the  shane  of  the  son  who  purchase  at  the  execu- 
tor's sale  was  held  to  come  to  him  directly  under  the  will. 

Mr.  Wharton,  in  reply,  — 

1.  All  the  cases  cited  to  show  that  the  devise  to  Dr.  Currie 
was  of  a  life  estate  only,  are  cases  of  complete  wills,  where  the 
testator  had  expressed  all  he  meant  to  say.     As  to  intention,  the 
testator  in  this  case  had  provided  for  his  Scottish  relations,  and 
probably  meant  to  give  the  same  estate  in  the  house  No.  65,  as 
he  had  given  in  No.  *63.     The  cases  cited  by  Judge     r*9f»-i-i 
Kennedy  in  4  Rawle,  70,  come  very  near  this. 

2.  The  will  of  George  Craig  does  not  mention  the  object  of  the 
sale  of  his  real  estate.     The  directions  are  general  and  positive  ; 
and  he  seems  to  take  it  for  granted  that  the  sale  would  be  made. 
If  his  object  had  been  merely  to  prevent  an  escheat,  he  would 
have  directed  a  sale  in  the  event  of  the  death  of  his  son  under 
age  ;  not  in  every  event  as  he  has  done.     The  cases  relative  to 
the  failure  of   an  object  of  sale    are   therefore   not  applicable. 
They  are  all  cases  of  a  power  of  sale  for  a  particular  object  —  as 
the  payment  of  debts  ;  and  the  Courts  have  said,  that  if  the  object 
fails,  the    heir   shall   be  considered   as  in   from   the  beginning, 
because  he  is  entitled  to  every  interest  not  disposed  of.     Here, 
however,  all  the  interest  in  the  land  is  disposed  of,  from  him. 
There  can  be  no  resulting  trust  for  him,  when  the  whole  benefi- 
cial interest  is  given  to  him   in   the  shape  of  personal   estate. 


261  SUPREME  COURT  [Dec.  Term, 

(Burro.  Sim.) 

Then  it  is  impossible  to  consider  this  a  mere  naked  power,  consist- 
ently with  the  current  of  authorities.  Zebach  v.  Smith,  (3  Binn. 
72  ;)  Llmjd  \  Taylor,  (1  Yeates,  422  ;)  Toller  on  Executors,  412, 
413.  The  direction  that  the  houses  shall  be  rented,  is  sufficient 
to  distinguish  this  case  from  those  which  have  been  cited  on  the 
other  side.  In  Carpenter  v.  Collins,  (Yelverton,  73,)  there  was 
no  direction  or  authority  to  sell ;  and  the  Court  seems  to  have 
been  divided  on  the  question  where  the  executors  took  the  legal 
estate.  In  Lancaster  v.  Thornton,  Roper  v.  Radcliff,  and  other 
cases,  there  was  a  mere  authority  to  sell,  without  any  intermedi- 
ate control  over  the  estate.  Roper  v.  Radcliff  is  besides  entitled 
to  little  respect  from  the  peculiar  circumstances  under  which  it 
was  decided ;  and  it  never  has  had  much  weight;  3  Wheaton,  590. 
The  passage  cited  from  Sugden,  393,  is  to  be  taken  with  refer- 
ence to  the  mere  naked  power  of  Avhich  he  had  been  treating :  as 
appears  clearly  from  the  cases  cited  by  him. 

The  opinion  of  the  court  was  delivered  by 

ROGERS,  J.,  who  after  stating  the  facts  and  the  principal  clauses 
in  the  wills  of  George  Craig  and  Archibald  Cummings  Craig,  pro- 
ceeded thus — 

It  is  contended,  1st,  that  by  the  will  of  George  Craig,  the  house 
and  lot  devised  to  Dr.  Currie,  which  is  the  subject  of  the  eject- 
ment, was  converted  into  personal  property. 

2.  That  whether  personal  or  real,  Doctor  Currie  took  an  abso- 
lute interest  in  the  estate. 

3.  That  if  the  real  estate  was,  by  the  will  of  George  Craig, 
converted  into  personalty,  yet  Archibald  Cummings  Craig  elected 
to  take  it  as  real  estate  after  he  attained  full  age :  that  as  such,  it 
was  a  new  acquisition  in  his  hands,  and  descended  to  the  heirs,  ex 
parte  paterna  as  well  as  materna. 

r*9R91          *  Under  the  three  questions  as  above  stated,  it  is  be- 
-"     lieved,  that  all  the  points  which  have  been  so  ably  and 
elaborately  discussed  at  the  bar,  may  be  considered. 

There  are  certain  principles  which  enter  into  the  solution  of 
the  first  proposition,  that  do  not,  at  this  day,  admit  of  dispute. 
Thus  equity  considers  lands  directed  in  wills  or  other  instruments 
to  be  sold  and  converted  into  money,  as  money  ;  and  money 
directed  to  be  employed  in  the  purchase  of  land,  as  land.  The 
doctrine  of  conversion,  as  it  is  called,  is  founded  on  the  equity 
maxim,  that  what  is  properly  and  sufficiently  directed  to  be  done, 
is  in  equity,  considered  as  done.  By  virtue  of  it,  one  may  im- 
press upon  his  money  the  character  of  land,  and  upon  his  land, 
that  of  money,  in  so  effectual  a  manner,  that  the  property  will 
thereafter,  in  a  Court  of  Chancery,  be  treated  as  of  the  descrip- 
tion into  which  it  is  directed  to  be  changed.  The  question  of 


1835.]  OF  PENNSYLVANIA.  262 

(Burr  t>.  Sim.) 

conversion  is  determined  according  to  the  intention  of  the  testa- 
tor, which  if  it  be  not  expressly  mentioned,  must  of  course  be 
derived  from  the  general  effect  of  the  will. 

The  general  intention  of  George  Craig  to  convert  his  real  estate 
into  money  is,  we  think,  very  plain.  If  we  are  at  liberty  to 
speculate  as  to  the  reasons  which  governed  him  in  the  disposition 
of  his  property,  it  would  seem  to  have  arisen  from  an  impression 
that  money  would  be  better  for  his  son  than  land,  an  impression 
probably  derived  from  the  difficulty  and  losses  he  had  experienced 
in  the  management  of  his  real  estate.  The  testator  has  blended 
his  real  and  personal  property  into  one  common  fund,  and  has 
throughout  spoken  of  it  and  treated  it  as  money,  and  as  such,  has 
directed  it,  in  express  terms,  to  be  paid  over  to  his  son,  when  he 
arrived  at  the  age  of  twenty-one  years. 

It  is  said,  that  if  the  purposes  of  the  will  be  specific,  as  to  pay 
the  testator's  debts,  legacies,  or  other  charges,  the  property 
beyond  what  is  sufficient  to  satisfy  the  same,  will  be  held  to  re- 
main in  its  original  estate  ;  and  if  they  should  wholly  or  par- 
tially fail,  the  property  will  be  regarded,  as  if  no  conversion  or 
only  a  partial  conversion  thereof  had  been  made.  The  heir-at- 
law  has  a  resulting  trust  in  such  land,  so  far  as  it  is  of  value, 
after  the  debts  and  legacies  are  paid ;  and  he  may  come  into  a 
Court  of  Equity,  and  restrain  the  trustee  from  selling  more  than 
is  necessary  to  pay  the  the  debts  and  legacies  ;  or  he  may  offer  to 
pay  them  himself,  and  pray  to  have  a  conveyance  of  the  part  of 
the  land  not  sold  in  the  first  case,  and  the  whole  in  the  latter, 
which  property  will,  in  either  case,  be  land  and  not  money.  This 
is  undoubtedly  true,  but  the  counsel  have  failed  in  pointing  out 
such  specific  purposes  in  the  will.  The  payment  of  debts  and 
legacies  was  not  the  moving  cause,  for  they  might  have  been  paid 
out  of  the  personal  estate,  which  is  the  primary  fund  for  that  pur- 
pose ;  nor  is  there  any  grounds  to  believe,  that  the  object  he 
designed  to  effect,  was  to  devise  a  mode  of  providing  for  his  alien 
"relatives,  who  resided  in  Scotland,  as  this  might  have  r*o(?o-i 
been  done  equally  well  in  other  ways.  But,  even  if 
these  were  some  of  the  reasons  which  influenced  him,  there  is  no 
ground  for  supposing,  that  they  were  the  only,  or  the  principal 
ones.  By  the  will  he  gives  his  property  to  his  son,  when  he 
attains  the  age  of  twenty-one  years,  and  directs  the  money  aris- 
ing from  the  sale  of  the  real  estate,  as  well  as  the  personal,  to  be 
paid  over  to  the  guardians  for  his  benefit  during  his  minority, 
and  the  money,  when  he  attains  age,  to  be  paid  to  himself  by  his 
guardians.  Even,  in  the  case  of  resulting  trusts  for  the  benefit 
of  the  heir-at-law,  it  is  settled,  that  if  the  intent  of  the  testator 
appears  to  have  been  to  stamp  upon  the  proceeds  of  the  land 
directed  to  be  sold,  the  quality  of  personalty,  not  only  to  subserve 


263  SUPREME  COURT  [Dec.  Term, 

(Burr  «.  Sim.) 

the  particular  purposes  of  the  will,  but  to  all  intents,  the  claim 
of  the  heir-at-law  to  a  resulting  trust  is  defeated  and  the  estate 
is  to  be  considered  to  be  personal.  Craiq  v.  Leslie,  (3  Wheat. 
583 ;)  Yates  v.  Compton,  (2  P.  Wills.  308.)* 

This  case  comes  within  another  principle.  Where  the  property 
devised  is  real,  and  directed  to  be  divided  for  the  general  pur- 
poses of  the  will,  as  for  instance,  to  form  with  the  personalty  a 
common  fund,  for  all  the  purposes  of  the  will,  although  it  should 
happen,  that  some  of  them  fail,  it  will  be  considered  an  absolute 
conversion.  The  new  character  is  definitively  and  imperatively 
fixed  upon  the  property,  or  in  more  technical  words,  it  is  said  to 
be  converted  out  and  out. 

But,  whether  the  property  be  personal  or  real,  it  is  said  Doctor 
Currie  took  the  whole  interest.  If  this  be  true,  it  defeats  the 
plaintiffs  title.  The  observations  which  have  been  already  make, 
might  seem  to  dispense  with  any  opinion  on  the  construction  of 
the  will,  on  the  supposition,  that  the  house  and  lot  was  real 
property,  but,  although  this  may  be  so,  yet  on  that  point  we  think 
it  right  to  express  an  opinion.  This  point  arises  on  the  clause  of 
the  will  of  Archibald  Cummings  Craig : 

"Further,  I  wish  to  give  unto  Doctor  WTilm.  Curry,  of  the 
Citty  of  Philada.  one  other  three  story  house  in  Arch-!3tt.,  No. 
65." 

It  is  contended  that  that  there  are  no  words  of  limitation  in  this 
clause,  which  will  carry  a  fee ;  still  it  is  said,  that  such  intention 
may  be  collected  from  the  whole  will. 

In  aid  of  this  part  of  the  case  the  counsel  wish  the  Court  to 
supply  certain  words  in  the  introductory  part  of  the  will,  and  in 
the  devising  clause.  Words  may  be  transposed,  supplied,  and 
changed  in  accordance  with  the  context.  But  this  cannot  be 
done  on  conjecture  ;  there  must  be  something  in  the  will,  from 
which  there  may  be  a  reasonable  implication,  that  by  the  con- 
struction you  carry  into  effect  the  testator's  intent.  (Pow.  D. 
371,  in  note).  We  are  requested  to  supply  the  words  declarative 
of  intention  to  dispose  of  all  his  estate.  But,  even  if  we  felt  our- 
F*2fi41  8e^ves  at  liberty  to  do  so,  *I  do  not  see  how  this  would 
J  help  their  case  ;  for  although  the  introduction  of  a  will 
declaring  that  a  man  means  to  make  a  disposition  of  all  his 
worldly  estate  or  worldly  goods,  is  a  strong  circumstance  con- 
nected with  other  words,  to  explain  the  testator's  intention  of 
enlarging  a  particular  estate,  or  of  passing  a  fee,  when  he  has 
used  no  words  of  limitation,  it  will  not  do  alone.  Ferris  and 
Wife  v.  Smith  $  al.  (17  Johns.  Rep.,  221 ;)  Lovcacres  v.  Blight, 
(Cowp.  356.) 

*9  Watts  &  Sergeant,  56  ;  2  Jones,  72;  3  Harris,  477 ;  6  Id.  107 ;   1  P. 
F.  Smith,  512. 


1835.]  OF  PENNSYLVANIA.  264 

(Burr  v.  Sim.) 

We  are  desired  however  to  add  words  of  limitation  to  the  de- 
vising clause,  but  for  this  we  perceive  no  warrant  in  the  will.  It 
is  impossible  for  us  to  tell,  if  lie  had  carried  out  his  intention  fur- 
ther, what  disposition  he  would  have  made  of  the  fee.  He  might 
have  limited  it  in  tail,  or  have  given  the  remainder  or  reversion  to 
some  person,  other  than  the  devisee.*  A  witness,  Henry  Dis- 
brow,  says,  that  he  asked  the  deceased  as  to  the  further  dispo- 
sition of  his  estate,  to  which  he  replied,  that  as  to  the  bequests 
already  set  down,  he  had  made  up  his  mind  upon  them,  for  some 
time  past,  but  as  to  further  bequests  he  had  not  made  up  his  mind, 
and  must  take  some  further  time  to  think  upon  the  subject ;  upon 
which  the  deponent  left  the  room  for  some  time,  and  upon  his  re- 
turn found  the  deceased,  as  he  thought,  incapable  of  proceeding 
any  further  in  the  business. 

It  is  again  said,  the  word,  further,  is  to  be  used  in  connection 
with  the  preceding  clause,  in  which  a  fee  is  given  to  the  devisee 
therein  named  in  apt  words.  But  the  defendant  cannot  derive 
any  benefit  from  this  source,  because  it  is  an  entirely  distinct  sen- 
tence from  the  preceding.  It  needs  no  reference  to  it  to  give  it 
meaning  and  effect ;  it  is  perfectly  intelligible,  standing  by  itself ; 
and  because  the  devises  are  to  different  persons.  The  terms, 
'  item,'  '  further,' '  moreover,'  are  commonly  used  in  the  beginning 
of  a  new  devise  or  bequest,  without  indicating  any  particular  in- 
tention in  the  disposition  of  the  property.  (4  Rawle,  66.)  The 
cases  where  this  word,  or  words  of  similar  import  have  enlarged 
the  estate  into  a  fee,  are  such  as  in  Neide  v.  Neide,  (4  Rawle, 
75,)  which  was  this  :  testator  devised  as  follows, — Principally 
and  first  of  all,  I  give  and  bequeath  to  my  eldest  son,  J.  N.  my 
late  purchase  from  E.  C.,  as  also  four  acres  of  woodland  in  a  cor- 
ner, &c.  The  land  purchased  from  E.  C.  was  purchased  in  fee 
simple,  and  it  was  held,  that  a  fee  passed  to  the  devisee,  both  in 
the  land  purchased  from  E.  C.  and  in  the  four  acres  of  woodland. 
This  Court  were  of  opinion  that  the  words  my  late  purchase,  in- 
dicated an  intention  to  give  a  fee  ;  that  there  was  a  necessary 
connection  betweed  the  two  pieces  of  property  ;  that  in  fact,  the 
latter  would  be  entirely  inoperative  without  reference  to  the  for- 
mer, and  that  as  it  was  to  the  same  person,  it  carried  a  fee  in  the 
four  acres  of  woodland. 

Taking  then,  this  to  be  the  case  of  a  sale  and  conversion  of 
land  into  money,  according  to  the  principles  before  stated,  it 
follows  that  it  remains  so,  unless  there  has  been  an  election  to 
take  it  as  land.f  Land  once  impressed  with  the  character  of 
money,  must  remain  so  *  impressed,  until  some  person  r*op <n 
elects  to  take  it  in  its  original  character  as  land  ;  and 

*  Act  of  8  April,  1833,  §  9,  P.  L.  250.     Pur.  Dig.  1017,  §  10. 
f  See  1  Watts  &  Sergeant,  455  ;  3  Id.  230  ;  3  Casey,  320. 
VOL.  i.— 18 


265  SUPREME  COURT  [Dec.  Term, 

(Burr  v.  Sim.) 

this  leads  to  the  question,  whether,  the  devisee,  Archibald  Cum- 
mings  Craig,  so  elected  to  consider  it.  It  must  be  observed,  that 
nothing  which  took  place  during  the  minority  of  Archibald  Cum- 
mings  Craig,  can  make  any  difference  in  the  result  for  an  infant 
cannot  by  any  act  of  his,  change  the  property  :  nor  can  his 
guardians  ;  nor  is  the  fact  that  the  property  remained  unsold 
until  the  devisee  arrived  at  full  age,  entitled  to  arty  weight  what- 
ever in  the  decision  of  this  question.  It  also  seems  to  me  to  be 
the  better  opinion,  that  taking  the  estate,  and  holding  it  one  year 
after  he  attained  his  age,  would  not  of  itself  be  an  election, 
although  entitled  to  some  weight.  It  is  certain,  that  the  devisee 
may  take  it  himself  in  the  shape  of  land  or  money  ;  but  when 
there  has  been  a  conversion  in  the  contemplation  of  the  Court, 
the  onus  of  showing  that  the  property  ought  to  pass  under  a 
different  denomination,  by  proving  an  act  in  the  donee,  indicat- 
ing his  intention  to  that  effect,  lies  on  the  party  who  claims  it  in 
its  original  estate.  It  is  therefore  incumbent  on  the  defendant, 
who  claims  the  property  as  land,  to  show  that  Archibald  Cum- 
mings  Craig  elected  so  to  consider  it ;  and  this  the  will  itself  suf- 
ficiently shows.  It  is  devised  by  the  testator,  as  real  estate  ;  and 
I  suppose  it  never  entered  his  mind,  when  he  took  possession 
of  the  property,  to  hold  it  in  any  other  character.  And  this  ar- 
gument derives  strength  from  the  preceding  clause,  where  the  tes- 
tator devises  the  other  house  which  he  held  by  the  same  devise, 
in  the  language  peculiarly  appropriate  to  the  limitation  of  a  fee 
simple  in  real  estate.  It  must  also  be  observed,  that  the  testator 
in  his  bequests  of  his  personal  funds,  omits  words  of  inheritance ; 
which  would  seem  to  show  that  however  little  he  may  have  been 
benefited  by  his  education,  he  was  aware  of  the  difference  in  the 
nature  of  estates  real  and  personal.  . 

If  then,  at  the  death  of  Archibald  C.  Craig,  the  property  in 
dispute  is  to  be  treated  as  real  estate,  is  to  be  regarded  as  a 
new  acquisition  by  him,  or  must  it  be  taken  as  property  which  de- 
scended to  him  from  his  father,  or  was  it  devised  to  him  as  real 
estate  by  his  father  ;  and  did  it  under  the  Act  of  1794,  pass  to 
his  heirs  on  the  part  of  his  mother,  as  well  as  to  the  heirs  on  the 
part  of  his  father  ? 

The  plaintiff's  counsel  contend,  that  the  power  to  sell  is  a 
naked  power,  and  that  until  the  execution  of  the  power,  the  land 
descends  to  the  heir,  who  at  common  law,  would  be  entitled  to 
the  profits.  As  a  consequence  of  this  doctrine,  it  is  insisted  that 
the  descent  is  not  broken,  but  that  Archibald  C.  Craig  took  the 
legal  estate,  and  that  in  electing  to  take  the  property  as  land,  he 
is  in  by  descent,  the  equitable  following  the  nature  of  the  legal 
estate.  But  we  do  not  view  the  authority  as  of  this  description  : 
we  think  it  clear  that  the  authority  to  the  executors  is  coupled 


1835.]  OF  PENNSYLVANIA.  265 

(Burr  v.  Sim.) 

with  a  trust  and  an  interest.  I  accede  to  the  principle  that  a 
pOAver  of  sale,  does  not  of  itself  *give  the  legal  estate,  r^o^^-i 
and  that  where  a  man  directs  his  executors  to  sell,  the  L  J 
land  descends  until  sale  to  the  heir  at  law ;  and  he  may  enter 
and  enjoy  the  rents,  issues  and  profits,  for  his  own  use.*  A 
devise  of  land  to  executors  to  sell,  passes  the  interest  in  it,  but  a 
devise  that  executors  shall  sell  the  land,  or  that  land  shall  be 
sold  by  the  executors,  gives  them  but  a  power.  Whether  the 
descent  is  broken  by  a  naked  power,  it  is  unnecessary  to  decide, 
nor  since  the  act  of  the  31st  March,  1792,  is  the  question  a 
point  of  much  importance  in  Pennsylvania  f  However  it  may  be 
as  to  a  naked  power,  there  can  be  no  doubt,  that  in  the  case  of  a 
power  coupled  with  an  interest,  as  we  think  this  to  be,  the  descent 
is  broken.  In  considering  the  extent  of  a  power,  the  intention  of 
the  parties  must  be  the  guide.  Sugden  on  Powers,  459.  A 
reference  to  the  terms  of  the  will,  is  the  only  course  by  which  to 
determine  whethei  a  naked  power  only  is  intended  to  be  given ; 
for  even  if  the  terms  made  use  of  in  creating  the  power,  detached 
from  the  other  parts  of  the  will,  confer  merely  a  naked  power  to 
sell,  yet  if  the  other  provisions  of  the  will  evince  a  design  that  at 
all  events,  the  lands  are  to  be  sold,  in  order  to  satisfy  the  whole 
intent  of  the  will,  it  is  not  a  naked  power,  but  is  coupled  with  a 
trust  and  an  interest.  14  Johns  R.  527,  franklin  v.  Osgood; 
2  P.  Wills.  311.  Here  it  is  necessary  that  the  land  should  be 
sold  to  satisfy  the  whole  intent  of  the  will,  as  it  is  plain  that  he 
has  directed  the  whole  estate  to  be  turned  into  personalty,  under 
an  impression  as  we  suppose,  that  this  was  the  best  disposition  of  his 
estate  for  the  benefit  of  his  only  son  and  heir.  The  testator  not 
only  authorizes,  but  he  directs  his  executors  to  sell ;  and  by  a 
necessary  implication  from,  the  will  they  are  authorized  and 
directed  to  rent  the  houses  devised,  until  they  shall  be  sold  ac- 
cording to  the  directions  of  the  will.  The  character  of  such  a 
power  does  not  depend  upon  the  quantity  of  interest  given,  for  a 
trustee  invested  only  with  the  use  and  profits  of  the  land  for  the 
benefit  of  another,  has  an  interest  connected  with  his  power ;  and 
it  has  been  held,  that  an  authority  to  lease  is  sufficient  to  exempt 
a  power  from  the  character  of  a  mere  naked  authority  to  a 
stranger.  2  Johns.  Ch.  R.  29.  This  is  a  devise  to  the  son,  who 
is  at  the  same  time  the  heir  of  the  testator  ;  but  supposing  that 
they  were  not  one,  what  authority  would  an  heir  have  to  enter 
on  the  land,  and  take  the  profits  ?  It  would  defeat  the  whole 
intention  of  the  will.  The  executors  must  have  an  interest  to 
carry  into  effect  the  general  purposes  of  the  testator.  It  results 
as  a  necessary  implication  from  the  whole  will,  that  is  not  as 

*  See  5  Wharton,  562. 

fBut  see  9  Watts,  145  ;  1  Harris,  260  ;  9  Wright,  84 ;  11  Wright,  153. 


266  SUPREME  COURT.  [Dec.  Term, 

( Brit  ton  «.  Stanley.) 

is  contended,  a  mere  naked  power  to  the  executors,  but  that  it  is 
au  authority,  coupled  with  a  trust  and  interest,  and  as  such  that 
the  descent  is  broken.  But  did  this  property  in  legal  contempla- 
tion as  land,  come  to  the  devisee  from  his  father  ?  We  think  it 
did  not.  It  came  to  him  impressed  with  the  character  of  money. 
It  was  by  an  act  of  his  own  that  it  was  reconverted  into  land. 
The  very  act  of  election  implies  a  choice  between  the  two  species 
f*2fi71  °^  Pr°Perty»  an(^  effects  *a  change  in  the  nature  of  the 
*-  J  property  itself.  If  the  property  had  been  sold  by  the 
executors  in  pursuance  of  the  directions  of  the  will,  and  the  de- 
visee had  become  the  purchaser,  as  he  might,  there  can  be  no 
doubt  that  it  must  be  viewed  in  the  light  of  a  new  acquisition. 
Where  then  can  be  the  difference,  when  by  an  act  of  his  own  he 
elects  to  consider  that  as  land,  which  otherwise  has  the  impress 
fixed  upon  it  as  money.  It  is  a  purchase  of  it  as  land,  by  a  sur- 
render of  the  right  which  he  undoubtedly  had  to  consider  it  as 
money.  And  there  is  no  hardship  in  this  to  the  relations  ex 
parte  paterna;  for  if  no  election  had  been  made,  the  property 
would  have  gone  to  his  relations  in  equal  degree,  without  regard 
to  the  source  from  whence  the  property  was  derived.  And  this 
seems  to  have  been  the  opinion  of  the  court  in  Allison  v.  Wilson, 
(13  Serg.  &  Rawle,  330). 

Judgment  reversed,  and  a  venire  de  novo  awarded. 

Cited  by  Counsel,  2  Wharton,  285,379 ;  8  Watts,  11,  505 ;  9  Id.  146 ;  3 
Watts  &  Sergeant,  125,  230 ;  9  Id.  134 ;  10  Barr,  246 ;  1  Jones,  363 ;  2 
Harris,  445 ;  I  Id.  508  ;  9  Harris,  401 ;  12  Id.  177  ;  4  Casey,  20 ;  2  Wright, 
142 ;  6  P.  F.  Smith,  229. 

Cited  by  the  Court,  3  Wharton,  65  ;  8  Watts,  252  ;  3  Watts  &  Sergeant, 
357  ;  6  Id.  261 ;  7  Barr,  290 ;  8  Id.  425  ;  8  Casey,  458  ;  13  Wright,  379  ;  8 
P.  F.  Smith,  443. 

Cited  by  the  Court  below,  4  Watts  &  Sergeant,  197. 

This  case  was  brought  up  again  on  another  point.  4  Wharton,  150. 


FEBRUARY  6,  1836.] 
BRITTON  and  Others,  against  STANLEY. 

Under  the  4th  section  of  the  18th  rule  of  this  Court,  judgment  cannot  be 
entered  on  a  verdict  rendered  at  Nisi  Prius.  within  the  first  four  days  of 
the  term,  nor  during  the  pendency  of  a  motion  for  a  new  trial,  unless 
the  Court  shall  have  ordered  judgment  to  be  entered  for  the  plaintiff  to 
stand  as  security. 

THIS  was  an  action  on  the  case  brought  in  the  Court  to  Decem- 
ber Term,  1832,  by  Hall  Britton,  Aaron  Wilson  and  George 


1835.]  OF  PENNSYLVANIA.  267 

(M 'Bride  r.  Duncan.) 

Ridgely  against  Jesse  Stanley.  Issue  being  joined  on  the  plea 
of  non  atsaumptsit,  the  cause  came  on  for  trial  before  Kennedy,  J. 
at  the  Nisi  Prius  held  in  Philadelphia  on  the  2d  of  March,  1835, 
when  a  verdict  was  rendered  for  the  plaintiff  for  one  thousand  two 
hundred  and  seventy-four  dollars  and  fifty  cents.  Judgment  nisi 
was  entered  on  this  verdict  on  the  16th  day  of  March,  1835,  being 
the  first  day  of  March  Term.  On  the  same  day  on  motion  of  Mr. 
W.  M.  Meredith,  for  the  defendant,  a  rule  was  granted  to  show 
cause  why  a  new  trial  should  not  be  allowed ;  and  reasons  were 
filed  conformably  to  the  rule  of  Court. 

On  the  14th  of  April,  1835,  Mr.  Meredith  obtained  a  rule  to 
show  cause  why  the  judgment  entered  on  the  verdict  should  not 
be  struck  off. 

The  question  was  argued  at  March  Term  last  by  Mr.  Meredith, 
in  favor  of  the  rule,  and  Mr.  •/.  R.  Ingersoll  against  it,  and  was 
*held  under  advisement  until  this  day,  when  the  opin- 
ion  of  the  Court  was  delivered  by 

SERGEANT,  J. — Considerable  doubt  has  been  occasioned  in  this 
case  by  the  practice  which,  it  appears,  has  prevailed  for  a  few 
years,  for  the  prothonotary  to  enter  judgment  on  the  verdict,  for 
the  plaintiff,  as  soon  as  the  jury  fee  is  paid,  sometimes  at  Nisi 
Prius  and  sometimes  at  the  sitting  of  the  Court  in  bank.  How- 
ever correct  this  may  formerly  have  been,  yet  it  would  seem  that 
the  case  is  provided  for  by  the  4th  section  of  the  18th  rule  of  this 
Court,  which  directs,  that  in  all  cases  of  motions  for  a  new  trial  or 
of  verdicts  subject  to  the  opinion  of  the  court,  the  court  may,  on 
the  report  of  the  judge  before  whom  the  cause  was  tried,  order 
judgment  to  be  entered  for  the  plaintiff  to  stand  as  security.  No 
inconvenience  can  flow  from  this  ;  for  the  plaintiff  may  at  the  first 
day  of  the  court  move  for  judgment,  and  if  by  the  report  of  the 
judge  who  first  tried  the  cause,  it  is  deemed  proper  he  should 
have  it  as  a  security,  it  may  be  immediately  ordered.  This  will 
prevent  a  loss  to  the  plaintiff  by  the  pendency  of  the  motion  in 
those  cases  where  it  is  proper  he  should  be  secured  by  a  judg- 
ment. In  no  case,  however,  can  the  judgment  be  entered  until 
the  jury  fee  is  paid  ;  nor  until  the  sitting  of  the  Court  in  bank. 

Judgment  taken  off. 

Cited  by  Counsel,  3  P.  F.  Smith,  426. 


[*PHILADELPHIA,  FERBUARY  6,  1836.]  [*269] 

M'BRIDE  against  DUNCAN,  Esq.,  and  Others. 

1.  In  trespass  against  a  sheriff  and  others  for  taking  the  plaintiff's  goods, 
the  defendants  may  give  in  evidence  under  the  general  issue  that  the 


269  SUPREME  COURT  [Dec.  Term, 

.(M 'Bride  t>.  Duncan.) 

goods  were  the  property  of  A.,  at  the  time  of  the  alleged  trespass,  and 
that  they  (the  defendants,)  took  them  under  a  judgment  and  execution 
against  A. 

2.  Where  such  matter  is  pleaded  specially,  the  court  will  strike  off  the 
special  picas,  although  they  allege  that  the  plaintiff  was  in  possession  of 
the  goods  by  a  bailment  from  A.,  for  safe  keeping,  or  by  a  fraudulent 
conveyance  from  him. 

3.  Qittre,  whether  an  averment  of  a  judgment  for  86000,  is  supported  by  a 
record  showing  a  judgment  entered  by  the  prothonotary,  in  pursuance 
of  the  Act  of  1806,  by  virtue  of  a  warrant  of  attorney  accompanying  a 
bond  in  the  penal  sum  of  $12.000,  conditioned  for  the  payment  of"$6000 
with  interest. 

THIS  was  an  action  of  trespass  brought  by  John  M'Bride 
against  Benjamin  Duncan,  Esq.,  High  Sheriff  of  the  City  and 
County  of  Philadelphia,  James  D.  Crozier,  David  Lewis,  jr., 
Joseph  Harper,  and  James  Saunders,  for  taking  and  carrying 
away  certain  goods  and  chattels,  (being  the  machinery  of  a  Cot- 
ton Mill,)  alleged  to  be  the  property  of  the  plaintiff. 

The  defendants  first  pleaded  "not  guilty,  with  leave  to  give 
the  special  matter  in  evidence,"  but  afterwards  obtained  a  rule  to 
show  cause  why  the  general  issue  should  not  be  withdrawn,  and 
special  pleas  filed  in  its  stead.  This  rule  was  made  absolute  at 
the  March  Term,  1835.  They  then  filed  six  special  pleas,  setting 
forth,  in  substance : 

1.  That  one  Thomas  Ireland,  at  the  December  Term,  1832,  of 
the  District  Court  for  the  City  and  County  of  Philadelphia,  ob- 
tained a  judgment  against  one  William  Linn,  for  $226  50,  with 
costs,  and  sued  out  of  the  said  Court  a  writ  of  fieri  facias,  directed 
to  the  sheriff  of  the  said  county,  commanding  him  to  cause  the 
said  debt  and  costs  to  be  levied  of  the  goods  and  chattels  of  the 
said  Linn;  which  writ  was  delivered  to  the  said  sheriff:  and  the 
said  defendants  averred  that  the  goods  and  chattels  mentioned  in 
the  declaration  were  the  property  of  the  said  Linn,  (but  that  the 
said  plaintiff  was  in  possession  of  the  said  goods  and  chattels  by 
color  of  a  certain  bailment  made  by  the  said  Linn  to  the  said 
plaintiff,  for  the  safe  keeping  thereof  ):  and  that  the  said  sheriff, 
did  in  obedience  to  the  said  writ,  and  by  virtue  thereof,  seize  and 
sell  the  said  goods  and  chattels,  &c. 

2.  That  one  John  B.  Newman,  at  the  March  Term,  1833,  of 
the  said  District  Court,  obtained  a  judgment  against   the  said 
f*2701     William  *Linn,  for  §5,904  40,  with  costs,  &c.  and  sued 

out  a  fieri  facias.  &c.,  with  the  like  averments. 

3.  That  the  said  James  G.  Crozier  at  the  March  Term,  1833, 
of  the  said  District  Court,  obtained  a  judgment  against  the  said 
William  Linn,  for  $859  81,  with  costs,  &c.,  and  sued  out  a  fieri 
/•dan,  &c.,  with  the  like  averments. 

4.  That  the  said  David  Lewis,  jr.,  at  the  December  Term,  1832, 


1835.]  OF  PENNSYLVANIA.  270 

(M 'Bride  v.  Duncan.) 

of  the  said  District  Court,  obtained  a  judgment  againt  the  said 
William  Linn,  for  $6000,  with  costs,  £c.,  and  sued  out  &  fieri 
facias,  &c.,  with  the  like  averments. 

5.  That  the  property  in  the  said  goods  and  chattels,  at   the 
time  of  the  taking,  &c.,  was  in  the  said  William  Linn,  and  that 
the  said  Linn  was  then  and  there  indebted  to  various  persons, 
altogether,  in  a  large  sum  of  money,  viz.,  the  sum  of  $20,000, 
and,  being  so  indebted,  did  before  the  commission  of  the  supposed 
trespass,  &c.,  assign  and  convey  the  said  goods  and  chattels  (with 
design  to  defraud  his  said  creditors  and  to  defeat  the  executions 
which  they  might  sue  out,)  to  the  said  plaintiff,  who  was  then  and 
there  privy  to   the   design   and  purpose.     And   the  defendants 
averred  that  the  said  David  Lewis,  jr.,  at  the  December  Term, 
1832,  of  the  said  District  Court,  by  the   consideration  and  judg- 
ment of  the  same  Court,  recovered  against  the  said  William  Linn, 
as  well  a  certain  debt  of  $6000,  as  also  six  dollars  and  twelve 
cents  for  his  damages,  for  the  detention  of  the  same,  &c.,  and 
that  he  sued  out  a  certain  writ  of  fieri  facias,  &c.,  under  and  by 
virtue  of  which  the  said  sheriff  sold  the  said  goods  and  chattels,  &c. 

6.  That  the  property  in  the  said  goods  and  chattels,  at  the 
time  of  the  taking,  &c.,  was  in  the  said  William  Linn,  and  that 
the  said  Linn  was  indebted  to  the  said  David  Lewis,  jr.,  in  the 
sum  of  $14,000,  and  being  so  indebted,  did  before  the  commission 
of  the  supposed  trespass,  &c.,  make  an  assignment  and  convey- 
ance of  the  said  goods  and  chattels,  (with  design  to  defraud  the 
said  David  Lewis,  jr.,  and  to  defeat  any  execution  which  he  might 
sue  out,)  to  the  said  plaintiff,  who  was  privy  to  the  design  and 
purpose.     And  the  defendants  averred  that  the  said  David  Lewis, 
jr.,  at  the  December  Term,  1832,  of  the  said  District  Court,  by 
the  consideration   and  judgment   of  the   said   Court,  recovered 
against  the  said  Wm.  Linn,  as  well  a  certain  debt  of  $6000,  as 
also  six  dollars  and  twelve  cents,  for  his  damages,  &c.,  and  that 
he  sued  out  a  certain  writ  of  fieri  facias,  &c.,  under  and  by  virtue 
of  which  the  said  sheriff  sold  the  goods  and  chattels,  &c. 

To  the  first  four  of  these  pleas,  the  plaintiff  put  in  replication 
concluding  to  the  country.  To  the  5th  and  6th  he  replied  nul 
tiel  record.  To  the  replication  to  the  first  plea,  the  defendants 
demurred  specially,  setting  fort  the  following  causes  of  demurrer, 
viz.: 

*  "  That  the  said  plaintiff  hath  in  and  by  his  said  repli-  r*  971-1 
cation,  tendered  and  offered  to  put  several  and  distinct 
matters  in  issue — that  is  to  say,  that  the  goods  in  declaration 
mentioned,  were  the  good  of  William  Linn:  that  they  were 
seized  and  taken  in  execution  by  the  said  Benjamin  as  sheriff, 
and  in  obedience  to  the  exigency  of  the  writ  in  the  said  plea 
mentioned,  and  that  the  said  James  G.,  David,  Joseph,  and  James, 


271  SUPREME  COURT  [Dec.  Term, 

(M 'Bride  v.  Duncan.) 

did  aid  and  assist  therein,  and  that  they  acted  therein  by  the 
command  of  the  said  Benjamin,  and  that  the  said  goods  were 
advertised  and  sold ;  and  for  that  the  said  plaintiff  should  and 
ought  in  and  hy  his  said  replication  to  have  tendered  and  offered 
to  put  in  issue  one  single  fact  only,  to  be  tried  by  a  jury  of  the 
country,  and  to  have  relied  on  the  same  ;  and  for  that  in  the 
manner  the  said  replication  is  above  pleaded,  no  certain  or  single 
issue  can  be  joined  in  the  same ;  and  for  that  the  said  replication 
is  double,  multifarious,  and  not  issuable ;  and  for  that  the  said 
replication  traverses  the  virtute  cujus  or  matter  of  law,  viz. :  that 
the  said  Benjamin  did  in  his  capacity  as  sheriff,  seize,  take,  adver- 
tise and  sell  the  goods  in  said  declaration  mentioned,  and  that  he 
did  the  same  in  obedience  to  the  exigency  of  said  writ,  in  the 
said  plea  mentioned,  and  that  he  did  the  same  to  make  the  money, 
in  the  said  writ  mentioned,  and  that  he  did  the  same  according  to 
the  command  of  the  said  writ ;  and  for  that  the  said  replication 
although  containing  affirmative  matter,  viz. :  that  the  said  goods 
were  the  property  of  the  plaintiff,  yet  concludes  to  the  country  ; , 
and  for  that  although  the  said  plaintiff  has  in  the  said  replication 
adopted  in  form  a  special  traverse  with  an  introduction  and 
abseque  hoc,  yet  he  concludes  to  the  country ;  and  for  that  there  is 
duplicity  in  the  introduction  of  the  said  replication,  viz. :  the  said 
introduction  contains  the  affirmation  that  said  goods  were  the 
property  of  the  said  plaintiff,  and  also  contains  the  averment  that 
the  defendants  of  their  own  wrong  committed  the  trespass  in  the 
declaration  mentioned ;  and  for  that  the  said  replication,  is  also 
in  various  other  respects  defective,  argumentative,  insufficient  and 
informal." 

To  the  replication  to  the  2d,  3d  and  4th  pleas,  they  rejoined 
the  similiter. 

The  cause  now  coming  up,  on  the  issue  nul  tiel  record  and 
the  demurrer  to  the  replication  to  the  first  plea,  the  questions 
were  argued  by  Mr.  J.  A.  Phillips  and  Mr.  W.  M.  Meredith 
for  the  plaintiff,  and  by  Mr.  F.  W.  Hubbell  for  the  defendant. 

1.  On  the  issue  of  nul  tiel  record,  Mr.  Ifubbell  produced  the 
record  of  a  judgment  in  the  District  Court  for  the  City  and 
County  of  Philadelphia,  confessed  by  virtue  of  a  warrant  of 
Attorney  accompanying  a  bond  executed  by  William  Linn  to 
David  Lewis,  jun.,  in  the  penal  sum  of  $12,000,  with  condition 
for  the  payment  of  $6,000  with  interest.  The  judgment  was 
entered  in  the  D.  S.  B.  docket  by  the  Prothonotary  of  the  Dis- 
trict Court,  in  pursuance  of  the  act  of  1806. 
F*9721  *^n  8uPPor*  °f  the  plea  averring  the  record,  it  was 
said  that  the  act  of  Assembly  required  the  Prothonotary 
to  enter  judgment  "for  the  amount  which  from  the  face  of  the 


1835.]  OF  PENNSYLVANIA.  272 

(M 'Bride  v.  Duncan.) 

instrument  may  appear  to  be  due."  Here  the  amount  due  was 
$6000,,  and  that  is  to  be  taken  to  be  the  amount  of  the  judgment. 
[ROGERS,  J. — Do  you  suppose  that  the  Legislature  intended  that 
the  Prothonotary  should  calculate  the  interest  due  ?  Suppose  pay- 
ments endorsed  on  the  bond  is  he  to  go  into  them?  Surely  there 
is  no  other  method  than  that  which  appears  to  have  been  pursued 
in  this  and  other  cases,  viz  :  to  enter  judgment  for  the  penalty.] 
Supposing  the  judgment  to  be  properly  for  $12,000,  it  is  certainly 
sufficient  to  sustain  a  plea  of  a  judgment  for  $6,000.  The  record 
shows  enough  to  justify.  This  judgment  is  pleaded  merely  as  an. 
inducement.  The  substance  of  the  plea  is  the  levying  a  fi.fa. 
Wait  v.  Briggs,  (1  Ld.  Rayd.  35 ;)  Purcell  v.  M'Namara,  (9 
East.  157 ;)  Phillips  v.  Eves,  (1  Esp.  355 ;)  Phillips  v.  Shaw, 
(4  B.  &  A.  435  ;  6  E.  C.  L.  R.  477 ;)  Stoddart  v.  Palmer,  (3 
B.  &  0.  2;  10  E.  C.  L.  R.  4.) 

On  the  other  side,  it  was  contended  that  the  judgment  produced 
varied  from  that  pleaded.  On  the  face  of  the  docket  it  was  for 
$12,000,  and  so  it  must  be  under  the  act  of  Assembly.  Suppose 
a  bond  with  collateral  condition,  or  for  money  not  due.  If  judg- 
ment were  entered  only  for  the  sum  mentioned  in  the  condition, 
there  would  be  no  lien  for  the  arrears  of  interest.  Helvete  v. 
Rapp,  (7  Serg.  &  R.  306 ;)  Commonwealth  v.  Conard,(\  Rawle, 
253.)  It  is  said  this  is  a  mere  matter  of  inducement.  If  the 
sheriff  had  justified  alone,  he  might  have  rested  on  the  fi.fa. ; 
but  by  joining  with  the  other  parties,  he  is  placed  under  the  same 
rule.  Ackworth  v.  Kempe,  (Douglas,  40.) 

2.  In  support  of  the 'demurrer,  the  following  cases  were  cited: 
—  G-renville  v.  The  College  of  Physicians,  (12  Mod.  386— S.  C. 
3  Salk.  355  ;  1  Ld.  Rayd.  454  ;)  Crowther  v.  Ramsbottom,  (7  T. 
R.  654;)  Lytle  v.  Lee,  (5  Johns.  Rep.  112  ;)  Plum  v.  M.  Orea, 
(12  Johns.  Rep.  491 ;)  Stephens  on  Pleading,  197,  202;  Demick 
v.  Chapman,  (11  Johns.  Rep.  131 ;)  Pulcher  v.  Sprague,  (2 
Johns.  Rep.  462  ;)  1st  Wms.  Saunders,  23. 

In  support  of  the  replication  were  cited,  Stephens,  274 ;  Robin- 
sonv  .  Bailey,  (1  Burr.  316 ;)  O'Brien  v.  Saxon,  (2  B.  &  C.  908, 
9  E.  C.  L.  R.  268  ;)  Strong  v.  Smith,  (3  Caines  Rep.  160 ;) 
Wood  v.  Holland,  (Styles  344 ;)  Brake  v.  Kerr,  (Carthew, 
125;)  1  Chitty,  625  ;*  Phillips  v.  ffolkett,  (2  B.  &  A.  220; 
Chauncey  v.Weir,  12  Mod.  580;)  Crogaie's  case,  (8  Rep.  66;) 
2  Blackstone's  Rep.  1028;  Cro.  Elix.  539  ;  1  Bos.  &  Pull.  76; 
Rayner  v.  Poynter,  (Willes,  410  ;)  Hobb.  244 ;  Earl  of  Suffolk's 
case,  (13  Hen.  7,  §  12,  13 ;)  3  Wilson's  Rep.  234 ;  s.  c.  2 
Blackst.  Rep.  776;  2  Wms.  Saunders,  295,  (a)  *note; 
1  Ld.  Rayd.  412;  1  Chitty,  654;  1  Saunders,  22; 


273  SUPREME  COURT  [Dec.  Term, 

(M 'Bride  t>.  Duncan.) 

Lambert  v.  Struther,  (Willis,  218 ;)  Fearon  v.  Pearson,  (1 
Saunders,  103,  (a);  Hedije*  v.  Sandon,  (2  Term.  Rep.  439;) 
Smith  v.  Dovers,  (Douglas,  428  ;)  1  Salk.  4  pi.  10 ;  Smith  v. 
J/j7/#,  (1  Terra  Rep.  475.) 

It  was  contended  also,  that  the  matter  of  the  special  pleas  was 
admissible  under  the  general  issue  ;  and  to  this  point  were  cited 
Luke  v.  Biller,  (1  Ld.  Rayd.  733;)  Martin  v.  Parter,  (2 
Blackst.  Rep.  701;)  Aekworth  v.  Kempe,  (1  Douglas,  40;) 
Saunderson  v.  Baker,  (3  Wilson,  309,  s.  c.  2  Blackst.  Rep.  802.) 

The  opinion  of  the  Court  was  delivered  by 

SERGEANT,  J. — It  has  been  contended  that  the  matter  of 
these  pleas  was  not  admissible  under  the  general  issue.  The 
substance  of  the  pleas  is,  that  the  plaintiff  derives  title  to  the 
goods  from  Wm.  Linn,  that  they  were  the  property  of  Linn  at 
the  time  of  the  alleged  trespass,  and  that  the  defendants  took 
them  under  a  judgment  and  execution  against  Linn.  The  whole 
matter  of  the  defence  might  be  given  in  evidence  under  the 
general  issue ;  for  that  puts  in  issue  the  question  of  property, 
and  if  the  facts  averred  in  the  pleas  be  true,  the  goods  were  not 
the  property  of  the  plaintiff.  Had  the  goods  been  seized  by 
virtue  of  an  execution  against  the  plaintiff,  the  case  would  be 
different.  In  such  case  the  defendant  admits  the  property  to 
have  been  the  plaintiffs,  but  avoids  his  right  by  virtue  of  the 
execution,  and  this  can  only  be  taken  advantage  of  by  a  special 
plea.  But  where  the  execution  is  against  a  third  person,  not 
the  plaintiff,  there  is  no  confession  and  avoidance ;  there  is  a 
denial1  of  the  property  which  may  be  by  the  general  issue.  The 
rule  on  the  subject  is  thus  laid  down  in  Roscoe's  Dig.  of  Evi- 
dence, 377.  In  trespass,  to  personal  property,  under  the  gene- 
ral issue,  the  defendant  may  show  that  the  goods  in  question 
were  not  the  property  of  the  plaintiff.  Thus  in  an  action  against 
the  sheriff  for  taking  the  plaintiff's  goods,  the  defendant  may 
show,  under  the  general  issue,  that  the  plaintiff  derives  title  to 
the  goods  under  a  bill  of  sale  fraudulent  as  against  creditors, 
and  that  the  defendant  took  them  under  a  judgment  and  execu- 
tion against  the  real  owners.  Martin  v.  Codyer,  W.  Bl.  701  ; 
Lake  v.  RiUerSj  1  Ld.  Ray.  733.  But  when  the  sheriff  justifies, 
taking  the  plaintiff's  own  goods,  under  a  writ  of  execution,  such 
justification  should  be  specially  pleaded,  for  the  property  of 
the  goods  continues  in  the  plaintiff  till  execution  executed; 
and  the  sheriff  cannot  show  that  he  took  them  when  they  were 
not  the  plaintiff's  goods.  So  in  2  Phill.  Evid,  221,  it  is  said 
"one  of  the  most  common  defences  to  this  action  against  the 
sheriff  for  taking  goods  in  execution  is,  that  the  third  person 
against  whom  the  execution  issued,  had  fraudulently  assigned  his 


1835.]  OF  PENNSYLVANIA.  273 

(M'Bride  ».  Duncan.) 

effects  to  the  plaintiff  for  the  purpose  of  defeating  the  execution 
of  a  creditor  ;  and  this  defence,  it  is  scarcely  necessary  to  observe, 
may  be  proved  under  the  general  *  issue."  In  the  pres-  r^oY^-i 
ent  case  the  defence  is  precisely  of  this  character,  and 
is  therefore  available  on  the  general  issue  of  not  guilty  ;  and  the 
special  pleas  amount  in  effect  to  the  general  issue,  and  no  more. 

Still,  though  the  general  rule  is  that  a  defendant  is  not  per- 
mitted to  put  in  special  pleas  which  amount  to  the  general  issue, 
and  the  Court  will  strike  them  off,  yet  there  are  exceptions.  For 
in  some  cases,  by  the  English  rules,  the  defendant  may  take  his 
choice  and  frame  his  plea  so  as  to  escape  being  liable  to  the  ob- 
jection. This  is  effected  by  the  device  of  giving  color,  as  in  these 
pleas  is  done  by  alleging  that  the  plaintiff  was  in  possession  of  the 
goods  by  a  bailment  from  Linn  for  safekeeping,  and  by  fraudulent 
conveyances  from  him.  And  where  such  course  preserves  to  the 
defendant  any  serious  advantage  he  might  otherwise  lose,  he 
would,  strictly  speaking,  be  entitled  to  take  his  choice,  and  resort 
to  the  circuity  of  special  pleading  instead  of  this  plain  path  of  not 
guilty^ 

No  important  advantage  can  attend  the  defendants  special 
pleading  in  the  case  before  us,  while  it  leads  to  delay  and 
burthens  the  records  with  volumes  which  serve  little  or  no  pur- 
puse,  but  the  exercise  of  ingenuity  and  learning.  It  is  said, 
(Hob.  127,)  that  it  is  a  good  reason  for  pressing  the  general 
issue,  instead  of  special  pleading,  that  "  it  makes  long  records 
where  there  is  no  cause."  In  Pennsylvania  this  remark  applies 
Avith  peculiar  force..  The  genius  of  our  jurisprudence  is  not 
favorable  to  the  practice  of  special  pleading,  and  the  cases  are 
rare  in  which  the  time  and  attention  of  the  Court  has  been  occu- 
pied by  disputes  upon  it.  There  is  no  class  of  the  profession 
employed  peculiarly  in  its  study,  nor  would  our  trivial  attor- 
ney's fee  compensate  for  the  labor  of  it.  Our  system  has  been 
to  try  causes  on  the  general  issue,  Avith  the  notice  of  the  special 
matter :  to  that  system  our  laws  and  practice  conform :  and 
justice,  it  is  believed,  is  as  well  administered  as  where  another 
system  prevails.  It  is  remarkable  that  in  some  of  the  actions 
which  the  Courts  have  invented  and  fostered  as  best  calculated 
for  the  trial  of  right,  such  as  ejectment  and  trover,  there  is  no 
special  pleading  ;  and  in  assumpsit  it  is  not  required.  It  is  not 
meant  by  these  remarks  to  intimate  that  there  are  not  cases  on 
which  special  pleas  are  necessary  and  proper,  and  in  which  the 
law  of  the  case  cannot  be  administered  without  them  :  or  that 
an  intimate  knowledge  of  that  branch  of  the  law  is  not  indispen- 
sable to  the  advocate.  But  where  justice  may  be  fully  attained 
without  it ;  where  special  pleading  involves  the  cause  in  prolixity 
and  delay,  without  conferring  any  real  benefit  on  him  who  re- 


274  SUPREME  COURT  [Dec.  Term, 

(M '"Williams  «.  Hopkins.) 

sorts  to  it,  the  Court  ought  in  the  exercise  of  their  legal  discretion, 
and  for  the  prevention  of  the  evils  that  would  result,  to  enforce 
the  rule,  that  the  defendant  shall  not  plead  specially  what  amounts 
to  the  general  issue. 

Special  pleas  struck  off. 

Cited  by  Counsel,  6  Wharton,  58  ;  3  Wright,  56. 
Cited  by  the  Court,  5  Wharton,  359. 


[*275]  [*PHILADELI%IA,  FEBRUARY  6,  1836.] 

M'WILLIAMS  against  HOPKINS,  Esq. 

A  judgment  for  costs  obtained  against  an  administrator  plaintiff  in  another 
Court,  and  assigned  by  the  defendant  there  to  A.,  cannot  be  set  ott" 
against  a  judgment  for  damages  obtained  by  such  administrator  against 
A.  in  this  Court. 

THIS  was  an  action  on  the  case  brought  by  Mary  M'Williams, 
administratrix,  &c.  of  James  M'Williams,  deceased,  against  Joseph 
R.  Hopkins,  Esq.  At  a  court  of  Nisi  Prius,  held  at  Philadel- 
phia on  the  9th  of  December,  1835,  a  verdict  was  rendered  for 
the  plaintiff,  with  $661  damages  ;  upon  which  judgment  was 
entered. 

• 

Mr.  Randall  for  the  defendant,  having  obtained  a  rule  to  show 
cause  why  the  defendant  should  riot  be  allowed  to  set  off  against 
this  judgment,  a  certain  judgment  for  costs  obtained  against  the 
plaintiff  in  a  suit  brought  by  her  as  administratrix,  in  the  Dis- 
trict Court,  and  assigned  to  the  present  defendant ;  the  rule  came 
on  for  argument  this  day. 

It  appeared  that  Mrs.  M'Williams,  as  administrator  of  Jame& 
M'Williams,  brought  an  action  in  the  District  Court  for  the  City 
and  County  of  Philadelphia,  to  June  Term,  1824,  against  John 
Swift,  Esq.,  which  was  referred  to  arbitrators,  and  an  award  made 
for  the  plaintiff.  The  defendant  appealed  from  the  award,  and 
upon  the  appeal  paid  costs  amounting  to  $102,  independently  of 
the  fees  of  witnesses. 

On  the  trial  of  the  cause  a  verdict  was  obtained  for  the  defend- 
ant ;  and  judgment  being  entered  thereon,  he  became  entitled  to 
recover  back  the  costs  he  had  paid.  This  judgment  was  assigned 
to  the  defendant,  Hopkins,  on  the  2d  of  January,  1836. 

Mr.  Randall  now  contended  that  the  set-off  was  admissible. 


1835.]  OF  PENNSYLVANIA.  275 

(M 'Williams  v.  Hopkins.) 

He  cited  Montague  on  Set-off,  6,  11 ;  Jacoby  v.  Gruier,  (6  Serg. 
&  R.  448.) 

Mr.  Earle,  contra.  The  judgment  is  between  different  par- 
ties, and  in  a  different  Court.  A  judgment  for  costs  is  not  de 
bonis  testatoris.  Besides,  the  judgment  is  several  years  old,  and 
cannot  be  enforced  without  a  scire  facias. 

Mr.  Randall  in  reply.  It  never  has  been  considered  necessary 
to  issue  a  scire  facias  where  there  is  a  judgment  for  costs  merely, 
The  practice  is  to  issue  execution  at  any  time  without  a  scire 
facias.  In  Muntorf  v.  Muntorf,  (2  Rawle,  180,)  it  was  de- 
cided that  an  executor  plaintiff  is  bound  to  pay  costs  to  the  de- 
fendant in  case  of  ndhsuit,  or  *  verdict  for  the  defendant.  r*o7fn 
Here  there  is  no  evidence  of  the  insolvency  of  M'Wil-  "- 
Hams'  estate. 

PER  CURIAM. — A  set-off  of  the  judgment  for  costs  assigned  to 
the  defendant,  which  has  been  recovered  in  another  action,  can- 
not be  allowed.  These  costs,  though  incurred  in  an  action  by  the 
plaintiff  as  administratrix,  are  her  proper  debt,  and  the  judgment 
for  them  is  de  bonis  propriis.*  It  is  true  they  may  be  allowed 
to  her  out  of  the  estate  in  the  settlement  of  her  accounts ;  but  that 
is  not  an  inevitable  consequence ;  and  to  allow  them  here  by  de- 
falcation of  judgments,  would  be  an  usurpation  of  the  power  of 
the  Orphans'  Court.  The  rule  must  be 

Discharged. 

Cited  by  the  Court,  10  Wright,  235. 

Explained,  11  Harris,  472. 

See  also,  4  Watts,  18  ;  7  Id.  464 ;  8  Id.  75. 


[PHILADELPHIA,  FEBRUARY  6,  1836.  ] 

SAME  against  SAME. 

1.  On  the  taxation  of  costs  against  a  Defendant  in  an  action  at  law,  the 
costs  of  a  Bill  to  perpetuate  testimony  were  disallowed. 

2.  Members  of  the  bar  are  not  entitled  to  witness  fees  for  attendance  in  a 
Court  in  which  they  actually  practice. 

3.  To  entitle  a  party  to  the  costs  of  his  witnesses  and  of  the  service  of  sub- 
poenas upon  them,  it  is  not  necessary  that  their  names  should  have  been 
inserted  in  the  subpoenas  by  the  Prothonotary,  before  delivering  them  to 
the  party. 

4.  It  is  not  necessary  that  witnesses  should  attend  before  the  Prothonotary 

*8  Watts  &  Sergeant,  280 ;  7  Barr,  136  ;  1  Harris,  531 ;  7  P.  F.  Smith,  114. 


276  SUPREME  COURT  [Dec.  Term, 

(M' Williams  t>.  Hopkins.) 

on  the  taxation  of  costs,  to  prove  their  attendance  on  the  trial  of  the 
cause.     The  fact  may  be  proved  aliunde. 

5.  Witnesses  who  attended  before  the  Prothonotary  on  the  taxation  of 
costs  to  prove  their  attendance  at  the  trial,  held  not  to  be  entitled  to  fees 
for  such  attendance  before  the  Prothonotary. 

THE  costs  of  the  plaintiff  in  this  case  having  been  taxed  by  the 
Prothonotary,  an  appeal  was  taken  from  his  decision.  The  ma- 
terial exceptions  were  as  follows  : 

1.  To  the  allowance  of  the  costs  of  a  Bill  to  perpetuate  testi- 
mony. 

2.  To  the  allowance  of  "  witness  fees  "  to  members  of  the  bar 
practising  in  the  Supreme  Court. 

3.  To  the  allowance   of  "  witness  fees "   for   persons   whose 
names  were  placed  in  the  subpoenas  after  they  had  issued,  and 
without  the  knowledge  of  the  prothonotary  ;  such  persons  not 
having  been  examined  on  the  trial. 

f*2771          *4'  '^°  ^e  a^owance  °f  fees  f°r  serving  subpoenas 
on  persons  whose  names  were  so  placed  on  subpoenas. 

5.  To  the  allowance  of  "  witness  fees"  for  persons  who  resided 
in  the  City  of  Philadelphia,  and  who  did  not  attend  at  the  taxa- 
tion. 

6.  To  the  allowance  of  fees  to  witnesses  for  attending  before 
the  Prothonotary  on  the  taxation  of  costs. 

Mr.  Randall  for  the  Defendant : 

1.  The   costs   of  a   Bill   to   perpetuate  testimony  cannot   be 
charged  against  this  defendant.     1  Maddock's  Chan.  195.     Act 
of  28  March,  1814,  §  26. 

2.  A  person  who  is  attending  Court  as  a  juror,  is  not  entitled 
to  fees  as  a  witness.     Nor  is  a  Justice  of  the  Peace  when  officially 
attending,  6  Binn.  397.     The  rule  must  be  the  same  with  respect 
to  a  member  of  the  bar  practising  in  the  Court  in  which  he  is 
called  upon  to  testify. 

3.  4.  In  this  case  the  names  of  several  persons  were  intro- 
duced into  the  subpoenas  by  the  plaintiff's  attorney,  after  they 
were  taken  out  of  the  office.     This  is  a  fraud  upon  the  Prothono- 
tary  ;  and  the  plaintiff  ought  not  to  recover  any  costs  for  the  -wit- 
nesses in  such  cases,  or  for  the  service  of  the  subpojnas  upon  them, 

[HUSTON,  J. — It  is  the  constant  practice  to  add  names  ;  and  the 
Prothonotary  cannot  be  injured  if  the  legal  fee  is  paid  for  every 
witness. 

ROGERS,  J. — The  practice  prevails  throughout  the  State. 
Blank  subpoenas  are  frequently  taken  out. 

GIBSON,  C.  J. — There  can  be  no  doubt  of  the  propriety  of 
these  charges.] 

5.  If  a  witness  does  not  attend  the  taxation  of  costs,  after 


1835.]  OF  PENNSYLVANIA.  277 

(M 'Williams  t).  Hopkins.) 

notice,  the  presumption  is  that  he  relinquishes  his  fees.  A  party 
ought  not  to  be  allowed  to  prove  the  attendance  of  witnesses ; 
since  he  receives  their  costs  in  the  first  instance. 

[HUSTON,  J. — It  is  certainly  not  necessary  to  produce  the 
witnesses.  If  their  attendance  is  proved  by  any  competent 
person,  it  is  sufficient.  Even  if  the  witness  should  be  unable  to 
state  the  number  of  days  he  attended,  I  think  the  fact  might  be 
proved  aliunde.~\ 

6.  The  act  of  Assembly  which  gives  fees  to  witnesses,  speaks 
of  "each  day's  attendance  in  Court."  I  understand  that  it  is 
the  practice  in  the  District  Court  not  to  allow  for  attendance  on 
taxation. 


*Mr.  Earle,  contra,  was  requested  by  the  Court,  to 
confine  himself  to  the  1st,  2d,  and  6th  exceptions. 


[*278] 


1.  The  record  shows  that  the  testimony  was  taken,  to  be  used 
in  this  case.     The  defenant  came  in,  and  made  himself  a  party. 

[HUSTON,  J. — It  is  settled  in  England,  that  a  demurrer  will 
lie  to  a  bill  of  this  kind,  if  there  is  no  impediment  to  the  plaintiff 
trying  his  right  at  law,  unless  the  witnesses  are  old  and  infirm. 
There  was  a  case  of  Blaine  v.  Chambers,  before  the  late  Judge 
Smith  on  the  Circuit,  in  which  the  rule  was  declared  to  be  the 
same  here;  and  his  opinion  was  afterwards  confirmed  by  the 
whole  Court.] 

2.  There  is  no  sound  reason  for'  excluding  members  of  the  bar 
from  fees  as  witnesses.     They  are  not  required  to  be   in  attend- 
ance upon  the  Court,  excepting  when  their  causes  are  on  trial ; 
and  the  fiction  of  their  perpetual  presence  ought  not  to  be  allowed 
to  operate  against  them. 

6.  The  witnesses  attended  the  taxation  in  consequence  of  notice 
from  the  opposite  party.  This  may  be  called  "attendance  in 
Court"  within  the  act  of  Assembly ;  since  the  Prothonotary  is 
an  office  of  the  Court,  and  supposed  to  be  in  their  presence. 

PER  CURIAM. — The  costs  of  the  bill  to  perpetuate  testimony 
must  be  struck  out,  as  not  having  been  incurred  in  the  cause, 
but  in  a  distinct  proceeding.  The  plaintiff  may  yet  have  the 
benefit  of  the  evidence  against  some  one  else,  as  amply  as  she 
has  had  it,  against  the  defendant ;  and  it  is  unfair  that  he  alone 
should  bear  the  expense  of  it.  The  charge  for  the  attendance, 
as  witnesses,  of  gentlemen  of  the  profession,  who  are  in  contem- 
plation of  law,  always  present  in  courts,  where  they  actually 
practice,  must  also  go  out.  So,  also,  the  charge  for  the  attend- 
ance of  witnesses  before  the  Prothonotary,  at  the  time  of  taxa- 
tion. The  practice  is  to  take  the  affidavit  of  the  party  at  the 
foot  of  the  bill,  f or  prima  facie  evidence  of  its  accuracy;  and  the 


SUPREME  COURT.  [Dec.  Term, 

(Drew  c.  The  Commonwealth.) 

witnesses  therefore  need  not  have  been  produced.     The  rest  of 
the  Bill  is  allowed. 

Taxation  confirmed,  subject  to  the  preceding  exceptions. 

SERGEANT,  J,  having  been  of  counsel  with  one  of  the  parties 
in  the  case  of  Jf*  Willians  v,  Swift,  did  not  sit  in  this  case. 
See  3  Wharton, 


[*279]  ['PHILADELPHIA,  FEBRARY  6,  1836.] 

DREW  against  The  COMMONWEALTH. 

IN   ERROR. 

1.  The  act  of  23d  April,  1829,  entitled,   "A  further  Supplement  to  an  act 
entitled,  'An  Act  to  reform  the  penal  laws  of  the  Commonwealth;'" 
does  not  repeal  the  llth  section  of  the  act  of  25th  of  March,  1824,  enti- 
tled, "An  act  to  re-charter  certain  banks,"  which  makes  the  forgery  of 
a  check  on  a  bank,  felony. 

2.  A  sentence  under  the  act  of  23d  April,  1829,  to  "separate  or  solitary 
confinement  at  labor,"  is  good. 

3.  Where  an  indictment  is  good,  and  there  is  no  error  in  the  trial,  but  the 
sentence  is  defective,  this  Court  will  not  send  back  the  prisoner  for  a 
new  trial,  but  will  sentence  him  de  now. 

IN  the  Mayor's  Court  for  the  City  of  Philadelphia,  Charles 
Drew,  Elijah  Drew,  and  Elisha  Drew  were  indicted,  for  that  they 
the  said  Charles  Drew,  Elijah  Drew  and  Elisha  Drew,  "  on  the 
9th  day  of  September,  in  the  year  of  our  Lord,  1833,  at  the  city 
aforesaid,  and  within  the  jurisdiction  of  the  said  Court,  with  force 
and  arms,  feloniously  did  falsely  make,  forge,  and  counterfeit  a 
certain  check  on  The  Philadelphia  Bank,  purporting  to  be  drawn 
by  Joseph  G.  Parke  &  Co.  for  the  sum  of  $5520.26,  to  be  pay- 
able to  bearer,  and  to  be  dated  the  day  and  year  aforesaid :  the 
said  The  Philadelphia  Bank  then  and  there,  being  a  bank  within 
the  Commonwealth  of  Pennsylvania,  incorporated  in  pursuance 
of  an  act  of  the  general  assembly,  which  said  false,  forged,  and 
counterfeit  check  partly  written  and  partly  printed,  is  in  the 
words  and  figures  following,"  setting  out  a  copy  of  the  check  and 
concluding  "  with  intent  then  and  there  to  defraud  the  said  The 
Philadelphia  Bank,  contrary  to  the  form  of  the  act  of  the  gene- 
ral assembly  in  such  case  made  and  provided,  and  against  the 
peace,"  &c. 

There  was  also  a  count  for  passing  the  said  check,  knowing  it 
to  be  forged,  with  the  like  intent,  and  contrary  to  the  form  of  the 
act  of  assembly,  &c. 


1835.]  OF  PENNSYLVANIA.  279 

(Drew  v.  The  Commonwealth.) 

The  defendants  were  indicted  in  like  manner  for  forging  a 
check  on  the  Farmers  and  Mechanics'  Bank,  purporting  to  be 
drawn  by  Jos.  G.  Parke  &  Co.  for  the  sum  of  $3500,  with  the 
like  intent,  &c.  And,  in  a  third  indictment,  for  forging  a  check 
on  the  Commercial  Bank  of  Pennsylvania,  purporting  to  be 
drawn  by  James  Musgrave,  for  $4800  63,  with  the  like  in- 
tent, &c. 

Charles  Drew  and  Elisha  Drew  were  severally  acquitted: 
Elijah  Drew  was  convicted  on  all  the  indictments,  and  was  sen- 
tenced on  the  first  indictment  "  to  pay  a  fine  of  $5  to  the  Com- 
monwealth, to  undergo  an  imprisonment  by  separate  or  solitary 
confinement  at  *labor^  in  the  State  Penitentiary  for  the  r*OQnn 
Eastern  District  for  the  term  of  four  years,  and  that  he  L 
be  fed,  clothed  and  otherwise  treated  as  the  law  directs,  pay  the 
costs  of  prosecution,"  &c.  On  the  second  indictment  he  was 
sentenced  to-  the  like  fine  and  imprisonment  in  like  manner 
for  three  years.  On  the  third  indictment  he  received  the  like 
sentence. 

A  writ  of  error  having  been  allowed,  the  record  was  removed 
to  this  Court,  and  the  following  errors  were  assigned: 

"  1st,  That  the  defendant  had  been  indicted,  tried,  and  con- 
victed under  the  llth  section  of  the  act  of  assembly  passed  on 
the  25th  day  of  March,  1824,  entitled  "An  act  to  recharter 
certain  banks"  (Pamphlet  laws,  page  73 ;)  and  has  been  sen- 
tenced under  the  seventh  branch  of  the  fourth  section  of  the  act 
of  assembly  of  23d  April,  1829,  entitled,  "A  further  Supplement 
to  an  Act,  entitled,  'An  Act  to  reform  the  penal  laws  of  this 
Commonwealth,'"  (Pamphlet  laws,  page  343.) 

"  2d,  Because  the  llth  section  of  the  act  of  25th  March,  1824, 
was  repealed  by  the  act  of  April  23d,  1829. 

"  3d,  Because  the  defendant  has  been  indicted,  tried,  and  con- 
victed of  a  felony,  when  the  offence  is  by  law  only  a  misde- 
meanor. 

"  4th,  Because  by  the  common  law,  the  crime  of  forgery,  of 
which  the  defendant  has  been  convicted,  is  only  a  misdemeanor, 
and  unless  made  a  felony  by  statute,  the  defendant  cannot  be  in- 
dicted and  convicued  of  a  felony,  and  there  is  no  act  of  assembly 
in  force  which  makes  this  offence  a  felony. 

"  5th,  Because  the  Court  below  erred  in  their  judgment,  in  sen- 
tencing the  defendant  below  to  pay  a  fine  of  five  dollars,  when  the 
punishment  by  law  is  "  solitary  confinement  at  labor  for  a  period 
not  less  than  one  year,  nor  more  than  seven  years." 

"6th,  Because  the  Court  below  erred  in  their  judgment,  in 
sentencing  the  defendants  to  pay  the  costs  of  prosecution. 

"  7th,  Because  the  Court  below  erred  in  their  judgment,  in 
sentencing  the  defendant  "  to  separate  or  solitary  confinement  at 

VOL.  i. — 19. 


280  SUPREME  COURT  [Dec.  Term, 

(Drew  v.  The  Commonwealth.) 

labor"  in  the  alternative,  when  by  law  they  only  had  power  to 
sentence  him  "  to  be  imprisoned  in  solitary  confinement  at  labor." 

Mr.  Phillips,  for  the  plaintiff  in  error,  contended, 
1st,  That  the  conviction  was  wrong.  The  act  of  25th  March, 
1824,  §  11,  12,  makes  it  a  felony  to  forge  a  check  on  a  bank. 
That  act  is  to  be  considered  as  abrogated  by  the  act  of  23d  April, 
1829,  the  10th  section  of  which  repeals  all  inconsistent  laws. 
The  act  of  1829  does  not  call  the  offence  a  felony.  It  must, 
therefore,  remain  as  it  was  in  common  law,  merely  a  misdemeanor; 
The  King  v.  Ward,  (2  Ld.  Raymond,  1461;)  Commonwealth 
v.  Searle,  (2  Binn.  380.)  To  show  that  an  affirmative  act  repeals 
all  preceding  acts  upon  the  same  subject,  were  cited  6  Bac.  Abr. 
372,  (Title  Statutes,  D.;)  4  Inst.  43;  Foster' a  Case,  (11  Rep. 
r*oon  61  0  ffarbat  v.  Fox,  (1  Shower,  520;)  *1  Ld.  Ray- 
mond, 161 ;  4  Burr.  Rep.  2C26.  [KENNEDY,  J.— Does 
not  the  concluding  section  of  the  ret  of  1829  save  all  previous 
descriptions  and  definitions  of  offences  ?] 

2d.  There  was  an  error  in  the  sentence,  first,  in  the  fine  of  $5 
which  is  not  authorized  by  the  act  of  1829,  and,  secondly,  in  the 
alternative  punishment  "separate  or  solitary  confinement  at 
labor,"  &c.  It  is  true  that  the  act  of  1829  directs  that  the  pun- 
ishment shall  be  "separate  or  solitary  confinement;"  but  it  means 
that  the  Court  shall  direct  one  or  the  other,  not  leave  it  to  the 
construction  of  the  officers  of  the  prison.  There  is  an  obvious 
distinction  between  separate  and  solitary  confinement.  [ROGERS, 
J. — Suppose  you  were  right  in  this  idea,  it  would  avail  your  client 
little,  since  we  would  have  him  brought  up  and  sentence  him 
aright.]  That  has  not  been  the  practice  heretofore.  This  Court 
in  several  cases,  in  which  they  reversed  the  sentence,  ordered  the 
party  back  to  be  tried  again.  [ROGERS,  J. — We  decided  a  short 
time  ago,  in  a  case  from  Luzerne  county,  that  where  the  indict- 
ment was  good,  and  the  trial  good,  but  the  sentence  defective,  we 
would  do,  what  the  Court  below  would  do,  after  a  new  conviction, 
sentence  him  de  novo.  The  subject  was  fully  considered  and  all 
the  authorities  cited.] 

The  Court  declined  hearing  The  Attorney -General  (7WeT) 
and  Mr.  '/.  M.  Read,  who  were  to  argue  in  support  of  the  judg- 
ment and  sentence. 

PER  CURIA  M. — By  the  eleventh  section  of  the  act  of  1824,  the 
forging  of  a  bank  check  such  as  this,  is  declared  to  be  a  felony 
punishable  with  fine  and  imprisonment  at  solitary  labor  for  not 
less  than  one  year  nor  more  than  ten  years.  How  far  has  this 
been  altered  by  the  act  of  1829  ?  By  the  fourth  section  of  that 


1835.]  OF  PENNSYLVANIA.  281 

(Coxe  v.  Tilghman.) 

act,  it  is  declared  that  instead  of  the  punishment  theretofore  pre- 
scribed, imprisonment  at  solitary  labor  for  a  period  not  less  than 
one  year,  nor  more  than  seven,  shall  be  inflicted  for  the  first 
offence,  and  the  like  imprisonment,  not  exceeding  ten  years,  for 
the  second.  Did  the  question  stand  on  this,  it  would  be  easy  to 
show  that  the  character  and  class  of  an  offence  is  not  altered 
by  a  modification  of  the  punishment.  But  the  sixth  section  de- 
clares, that  "  all  definitions  and  descriptions  of  crimes  ;  all  fines, 
forfeitures,  penalties,  and  incapacities ;"  the  restitution  of  pro- 
perty or  payment  of  the  value  ;  and  every  other  matter  not  par- 
ticularly mentioned  ;  shall  remain  as  theretofore.  Certainly  the 
definition  and  description  of  a  crime  have  respect  to  its  essence 
and  class,  when  it  induces,  as  felony  does,  a  civil  disability,  by 
incapacitating  a  party  convict  to  be  a  witness.  It  is  clear,  there- 
fore, that  it  was  not  the  intention  of  the  legislature  to  reduce  the 
type  of  the  offence  to  a  misdemeanor  ;  and  it  is  needless  to  say 
that  the  fine  is  not  abolished. 

Judgment  affirmed. 

Cited  by  Counsel,  5  Barr,  65  ;  9  Harris,  529. 
Cited  by  the  Court,  7  Barr,  375  ;  1  Casey,  22. 


[* PHILADELPHIA,  FEBRUARY  6,  1836.]  [*282] 

COXE  and  Others  against  TILGHMAN  and  Another. 

1.  In  an  action  of  covenant,  amendments  of  the  declaration  assigning  new 
breaches  of  the  same  instrument  on  which  the  original  counts  were 
founded,  and  alleging  performance  on  the  part  of  the  plaintiff,  in  another 
mode  than  was  alleged  in  the  original  counts,  are  admissible. 

2.  In  actions  ex  contractu,  so  long  as  the  plaintiff  adheres  to  the  original 
instrument  or  contract  on  which  the  declaration  was  founded,  an  amend- 
loient  making  an  alteration  of  the  grounds  of  recovery  on  that  instrument 
or  contract,  or  of  the  modes  in  which  the  defendant  has  violated  it,  is 
admissible.     Per  SERGEANT,  J. 

3.  In  actions  ex  delicto,  the  rule  is  the  same  :  The  foundation  of  the  com- 
plaint laid  in  the  declaration  must  be  adhered  to ;  although  the  mode  of 
stating  that  complaint,  may  be  varied  by  an  amendment.     Per  SER- 
GEANT, J. 

Tins  was  an  action  of  covenant  brought  in  this  Court  by 
Charles  S.  Coxe,  Francis  S.  Coxe,  and  Henry  S.  Coxe,  execu- 
tors of  the  last  will,  &c.,  of  Tench  Coxe,  deceased,  against  Ben- 
jamin Tilghman  and  Elizabeth  Tilghman,  executors  of  the  last 
will,  &c.,  of  Edward  Tilghman,  deceased,  upon  an  agreement 
under  seal  dated  the  25th  day  of  July,  180(3,  between  Tench 


282  SUPREME  COURT  [De/:.  Term, 

(Coxet.  Tilghman.) 

Coxe  and  Edward  Tilghman,  by  which  the  latter  covenanted  to 
purchase  certain  lands  of  the  former. 
The  declaration  contained  four  counts. 

1.  The  first  count  set  forth  that  it  was  covenanted  and  agreed 
between  the  said  Tench  Coxe  and  Edward  Tilghman,  that  in  con- 
sideration of  the  covenants  of  the  said  E.  T.,  the  said  T.  C.  would 
convey  or  cause  to  be  conveyed  to  the  said  E.  T.,  or  to  such  per- 
son as  he  should  appoint,  the  said  T.  C.'s  right  to  certain  lands 
in  the  State  of  Pennsylvania,  amounting  to  16,800  acres  ;  a  cer- 
tain portion  of  which  was  within  the  boundaries  or  lines,  and  a 
certain  other  portion  without  the  boundaries  or  lines  of  a  certain 
selection  of  45,000  acres  of  land,  made   by  the  said    Edward 
Tilghman,  Wm.  Cramond,  Adam  Kuhn,  and  Joseph  Thomas,  out 
of  a  larger  tract  claimed  by  James  Wilson  deceased  :  that  the 
said  E.  T.  covenanted  and  agreed  that  he  would  designate  before 
the  first  day  of  May,  1807,  what  quantity  of  the  said  16,000 
acres  was  not  within  the  said  boundaries  and  lines,  and  what  was 
within  them,  and  would  also  before  that  day  pay  to  the  said  T.  C. 
25  cents  for  every  acre  of  2-3rds  of  such  quantity  of  the  said 
16,800  acres,  as  he  should  show  not  to  be  within  the  said  bound- 
aries and  lines,  and  also  pay  'the  said  T.  C.,  25  cents  for  every 
acre  for  2-3rds  of  12-45ths,  and  for  every  acre  of  14-45ths,  of 
such  quantity  of  the  same  as  he  should  show  to  be  within  the  said 
boundaries  and  lines  :  Averment  that  though  the  said  T.  C.  was 
always  ready  and  willing  to  convey,  &c.,  yet  the  said  E.  T.  did 
f*9831     n°t  well  and  truly  designate  *  on  or  before  the  said  first 

J  of  May,  1807,  what  quantity  was  within  and  what  was 
without  the  said  boundaries,  &c.,  and  did  not  pay  the  said  sum  of 
25  cents  for  every  acre  as  aforesaid. 

2.  The  second  count  set  forth  the  covenant  by  T.  C.  to  convey 
as  before,  and  that  the  said  E.  T.  covenanted  to  pay  25  cents  per 
acre  as  in  the  first  count :  Averment,  that  the  quantity  of  5600 
acres  was  within,  and  the  like  quantity  without  the  said  bounda- 
ries ;  that  the  said  T.  C.  was  ready  and  willing  to  convey ;  and 
breach  as  in  the  first  count. 

3.  The  third  count  set  forth  the  covenant  by  T.  C.  as  before  ; 
that  the  said  E.  T.  covenanted  and  agreed  that  as  to  l-3d  of  the 
said  16,800  acres,  he  would  well  and  truly  pay  the  said  T.  C.  25 
cents  for  every  acre  thereof,  together  with  interest  from  the  15th 
of  August,  1793,  so  soon  as  he,  the  said  E.  T.,  could,  after  the 
25th  of  July,  1806,  legally  ascertain  whetller  any  part,  and  if 
any,  how  much  of  the  said  l-3d  was  taken  away  by  elder  surveys, 
other  than  those  in  which   he  the  said   E.  T.  was  concerned : 
Averment,  that  no  part  of  the  said  l-3d  part  was  taken  away  by 
elder  surveys,  other  than  those  in  which  the  said  E.  T.  was  con- 
cerned :  and  that  the  said  E.  T.  did  afterwards,  viz.  on  the  25th 


1835.]  OF  PENNSYLVANIA.  283 

(Coxe  v.  Tilghman.) 

of  July,  1807,  legally  ascertain  that  no  part  of  the  said  16,800 
acres,  was  taken  away  by  elder  surveys  other  than  those  in  which 
the  said  E.  T.  was  concerned :  Breach,  that  the  said  E.  T.  did 
not  pay  the  said  25  cents  for  every  acre  of  the  said  l-3d,  together 
with  interest,  &c.,  so  soon  as  he  could  legally  ascertain  whether 
any  part  was  taken  away  by  elder  surveys,  &c. 

4.  The  fourth  count  set  forth  the  covenants  by  T.  C.  and  E. 
T.,  as  in  the  third  count :    Averment,  that  only  50  acres  of  the 
said  l-3d  part  of  the  16,800  acres,  Avere  taken  away  by  elder 
surveys,  other  than  those  in  which  he  the  said  E.  T.  was  con- 
cerned;   and  that   the    E.  T.  afterwards,  viz.   on   the    25th   of 
July,  1807,  legally  ascertained  the  same:     Breach  that  the  said 
E.  T.  did  not  pay  the  said  25  cents  for  every  acre  of  the  said 
l-3d  part,  after  the  said  50  acres  were  taken  away  by  elder  sur- 
veys, &c. 

Two  additional  counts  were  afterwards  filed. 

5.  The  fifth  count  set  forth  the  covenant  by  T.  C.,  to  convey 
16,800  acres  of  land  a  certain  part  of  which  was  supposed  to  be 
within  and  a  certain  part  without  the  boundaries  and  lines  afore- 
said, and  that  the  said  E.  T.  covenanted  to  pay  25  cents  for 
every  acre  of  2-3ds  of  12-45ths,  and  for  every  acre  of  14-45ths 
of  such  quantity  of  the  said  16,800  acres  as  should  be  within  the 
boundaries  and  lines  aforesaid  :  Averment,  that  the  whole  of  the 
said  16,800  acres  were  within,  and  no  part  thereof  without  the 
said  boundaries  and  lines:     Breach,  that  the  said  E.  T.  did  not 
pay  the  said  25  cents  for  every  acre,  &c. 

6.  The  sixth  count  set  forth  the  covenant  by  Coxe  as  in  the 
fifth  count,  with  some  variations. 

*  The  defendants  pleaded  r*9841 

1.  Non  estfactum. 

2.  That  by  the  said  agreement  the  said  T.  C.  covenanted  on 
or  before  the  first  of  May,  1807,  to  designate  what  proportion  of 
the  16,800  acres  was  within  and  what  was  without    the   said 
boundaries:    Averment,  that  the  said  E.  T.  was  willing,  &c.,  to 
perform  the  covenants  on  his  part,  but  the  said  T.  C.  did  not  des- 
ignate what  proportion,  &c. 

3.  That  by  the  said  agreement  the  said  T.  C.  covenanted,  that 
on  or  before  the  said  first  of  May,  1807,  he  would  furnish  the 
said  E.  T.  with  the  means  of  ascertaining  what  proportion  of  the 
said  16,800  acres,  was  within  and  what  was  without  the  said 
boundaries :    Averment,  that  the  said  E.  T.  was  willing,  &c.,  if 
the  said  T.  C.  wolud  furnish  him  with  the  means,  &c. 

4.  To  the  second  count,  that  a  certain  quantity,  viz.  5,600 
acres  was  not  within  the  said  boundaries,  and  that  a  certain  quan- 
tity, viz.  5,600  acres  was  not  without  the  said  boundaries,  &c. 

5.  To  the  third  and  fourth  counts:  That  by  the  said  agree- 


284  SUPREME  COURT  [Dec.  Term, 

(Coxe  v.  Tilghman.) 

ment  the  said  T.  C.  covenanted  (as  soon  as  conveniently  and 
legally  might  be,)  to  ascertain  and  give  notice  to  the  said  E.  T. 
how  much  of  the  said  16,800  acres  was  taken  .away  by  elder  sur- 
veys, other  than  those  in  which  the  said  E.  T.  was  concerned : 
Averment,  that  the  said  E.  T.  was  willing,  &c.,  to  perform  the 
covenants  on  his  part,  if  the  said  T.  C.  would  legally  ascertain 
and  give  notice,  &c. 

6.  To  the  third  count :  That  the  said  E.  T.  did  not  and  could 
not  on  the  25th  of  July,  1806,  or  at  any  other  time,  legally  ascer- 
tain that  no  part  of  the  said  l-3d  part  of  the  16,800  acres  was 
taken   away  by   elder  surveys,  other  than  those  in  which    the 
said  E.  T.  was  concerned :  concluding  to  the  country. 

7.  To  the  third  and  fourth  counts:  That  by  the  said  agreement 
the  said  T.  C.  covenanted  (as  soon  as  conveniently  and  legally 
might  he,)  to  furnish  the  said  E.  T.  with  the  means  of  ascertain- 
ing how  much  of  the  said  16,800  acres  was  taken  away  by  elder 
surveys,  other  than  those  in  which  the  said  E.  T.  was  concerned : 
Averment  that  the  said  E.  T.  was  willing,  &c..  to  perform  the 
covenants  on  his  part,  if  the  said  T.  C.  would  furnish  him  with  the 
means  of  ascertaining,  &c. 

8.  To  the  fourth  count:    That  the  said  E.  T.  did  not  and 
could  not  on  the  25th  of  July,  1806,  or  at  any  other  time  legally 
ascertain  that  a  small   part  of  the  said   l-3d  part  of  the  said 
16,800  acres,  viz.  50  acres  was  taken  away  by  elder  surveys, 
other  than  those  in  which  the  said  E.  T.  was  concerned:  conclud- 
ing to  the  country. 

9.  That  before  the  execution  of  the  said  agreement,  viz.  on  the 
28th  of  March,  A.  D.  1801,  the  said  T.  C.  by  indenture  of  that 
date,  granted  and  conveyed  the  said   16,800  acres  of  land,  and 
all  his  title  and  interest  in  the  same,  to  William  Tilghman  and 
others,  and  their  heirs  and  assigns,  upon  certain  trusts  and  condi- 
tions in  the  said  indenture  expressed,  &c. 

r*28'i1  *  ^'  J>erf°rmance  5  witn  leave  to  give  the  special 
matters  in  evidence. 

11.  No  assets.  12.  Plene  administraverunt  prceter,  go.  and 
13.  Debts  of  a  higher  nature,  &c.  &c. 

To  the  1st  and  4th  pleas  the  plaintiffs  replied  the  similiter. 

To  the  2d,  3d,  5th,  6th  and  7th  pleas,  they  demurred  generally. 
To  the  8th  a  special  demurrer  was  filed,  setting  out  for  cause 
that  the  defendants  have  in  the  said  plea  offered  to  put  in  issue, 
a  matter  not  properly  issuable,  that  they  have  not  in  said  plea 
denied,  confessed,  or  averred  the  substantial  matter  in  the  breach 
of  covenant  in  the  fourth  count  alleged,  and  that  the  plea  ought  to 
have  concluded  with  a  verification  and  not  to  the  country. 

To  the  9th  plea  the  plaintiffs  replied  that  the  agreement  with 
the  said  E.  Tilghman  was  made  with  the  consent  and  apprpba- 


1835.]  OF  PENNSYLVANIA.  285 

(Coxe  v.  Tilghman. ) 

tion  of  the  assignees  of  said  T.  C.,  which  was  well  known  to  said 
E.  T.,  and  that  all  the  right,  title  and  interest  of  said  assignees, 
have  become  vested  in  C.  S.  Coxe,  one  of  the  plaintiffs,  who  has 
always  been  readv  and  willing  to  convey  to  B.  Tilghman,  one  of 
the  defendants,  in  trust  for  the  heirs,  £c.,  of  the  said  Edward 
Tilghman. 

To  the  llth,  12th  and  13th  pleas,  replication  of  assets  ultra, 
&c. 

On  the  9th  of  December,  1835,  a  rule  was  obtained  to  show 
cause  why  the  plaintiffs  should  not  have  leave  to  withdraw  the 
declaration  on  the  record,  and  file  a  new  one. 

The  declaration  proposed  to  be  substituted,  contained  10 
counts. 

1.  The  first  count  set  forth  the  covenant  to  convey  16,800  acres, 
and  that  as  to  one-third  thereof,  payment  should  be  made  when  it 
was  ascertained,  (which  the  said  E.  T.  was  to  do  as  soon  as  con- 
veniently and  legally  might  be,)  whether  any,  and  how  much  was 
taken  away  by  elder  surveys,  other  than  those  in  which  said  E. 
T.  was  concerned,  and  that  the  payment  should  be  made  in  man- 
ner following,  viz.  for  so  much  of  the  said  one-third  as  should  re- 
main after  elder  surveys,  other,  &c.  and  as  was  not  within  the 
selection  of  45,000  acres,  the  said  E.  T.  agreed  to  pay  the  said 
T.  C.  when  it  should  be  ascertained  as  aforesaid,  25  cents  for 
each  acre  with  interest,  from  the  15th  of  August,  1793,  and  for 
so  much  as  should  remain  after  elder  surveys,  other,  than,  &c., 
25  cents  with  interest  as  aforesaid,  for  each  acre  of  12-45ths,  and 
of  14-45ths,  together  26-45ths  thereof:  Averment,  that  the  said 
E.  T.  ascertained  on  the  25th  of  July,  1806,  that  no  part  of  the 
said  third  was  taken  away  by  such  survey,  other  than,  &c.,  and 
that  no  part  of  the  same  was  within  the  said  selection ;  that  the 
said  T.  C.  in  his  lifetime  was  always  willing  to  convey,  or  cause 
to  be  conveyed,  &c.,  and  that  the  said  plaintiffs,  since  his  death, 
have  been  always  willing  to  cause  to  be  conveyed,  &c. 

2.  The  2d  count  set  forth  that  the  said  E.  T.  undertook  to 
ascertain  and  make  known  to  the  said  T.  C.,  within  a  reasonable 
and  short  *  time,  the  lines  and  boundaries  of  the  said 
selection  of  45,000  acres,  and  what  part  of  the  third  was 

within  them:  Averment  that  the  same  might  have  been  ascer- 
tained before  the  1st  May,  1807,  but  the  said  E.  T.  did  not  ascer- 
tain, &c. 

3.  The  3d  count  set  forth  that  the  said  E.  T.  covenanted  to 
pay  the  said  T.  C.  the  sum  of  25  cents  with  interest,  &c.  for 
every  acre  of  2-3ds  of  12-45ths  and  of  14-45ths  of  16,800  acres, 
that  was  within  the  boundaries,  &c.  of  the  said  45,000  acres,  &c. : 
Averment,  that  all  the  said  16,800  acres  were  within  the  said 
selection. 


286  SUPREME  COURT  [Dec.  Term, 

(Coxe  v.  Tilghman.) 

4.  The  4th  count  set  forth  that  the  said  E.  T.  covenanted  to 
pay  the  said  T.  C.  the  sum  of  25  cents,  with,  &c.  for  every  acre 
of  2-3ds  of  12-45ths  and  of  14-45ths  of  16,800  acres  that  was 
without  the  boundaries,  &c. :  Averment,  that  all  the  said  16,800 
acres  were  without  the  said  selection. 

5.  The  5th  count  set  forth  the  covenant  of  E.  T.  as  in  the  3d 
count,  and  that  the  said  E.  T.,  would  within  a  reasonable  and 
short  time,  viz.  before  1st  May,  1807,  ascertain  the  said  lines  and 
boundaries,  and  the  quantity  of  the  said  16,800  acres  which  fell 
within  them :  Averment,  that  it  was  convenient  to  the  said  E.  T. 
to  ascertain,  &c.  before  the  first  of  May,  1807,  &c. 

6.  The  6th  count  was  the  same  as  the  5th,  except  that  the  cove- 
nant was  as  to  the  quantity  of  the  16,800  acres  which  fell  without 
the  said  lines  and  boundaries. 

7.  The  7th  count  set  forth  that  the  said  E.  T.  covenanted  that 
the  said  Adam  Ku.hu  would  well  and  truly  pay  the  said  Coxe,  25 
cents  with  interest,  from  the  15th  of  August,  1793,  for  every 
acre  of  2-3ds  of  7-45ths  of  such  quantity  of  the  said  16,800  acres, 
as  fell  within  the  said  selection:   Averment,  that  all  the  said 
16,800  acres  were  within  the  said  selection,  and  that  the  said 
Adam  Kuhn  did  not  pay  the  said  25  cents,  &c. 

8.  The  8th  count  set  forth  that  the  said  E.  T.  covenanted  that 
the  assignees  of  Joseph  Thomas,  would  within  a  reasonable  time, 
viz.  on  or  before  the  25th  of  July,  1807,  pay  the  said  T.  C.  25 
cents,  with  interest,  &c.  for  every  acre  of  2-3ds  of  12-45ths  of 
the   said  land   within   the   said   selection:    Averment,   that   all 
the  said  16,800  acres  were  within  the  said  selection,  and  that 
the  assic/nees  of  the  said  Joseph   Thomas  did  not  pay  the  25 
cents,  &c. 

9.  The  9th  count  set  forth  that  the  said  E.  T.  covenanted  that 
the  assignees  of  Joseph  Thomas  would  within  a  reasonable  time, 
viz.  on  or  before  the  25th  of  July,  1807,  pay  the  said  T.  C.  25 
cents,  with  interest,  &c.  for  every  acre  of  l-3d  of  12-45ths  of  the 
said  land  as  should  remain  after  elder  surveys,  other  than,  &c. 
and  as  should  fall  within  the  said  selection,  &c.     Averment,  that 
no  part  of  the  said  16,800  acres  was  taken  away  by  elder  surveys, 
other  than,  &c.  and  that  the  whole  thereof  was  within  the  said 
selection,  &c.  and  that  the  assignees  of  the  said  Joseph  Thomas 
did  not  pay,  &c. 

r*287~i       * 10*  The  loth  count  set  forth  tliat  *he  8aid  E"  T> 

L  J  covenanted  that  Adam  Kuhn  would,  within  a  reasonable 
time,  viz.  on  or  before  the  1st  of  May,  1807,  pay  the  said  T.  C. 
25  cents  (with  interest,  &c.)  for  every  acre  of  l-3rd  of  7-45ths 
of  so  much  of  l-3rd  of  the  said  16,800  acres  as  should  remain 
after  elder  surveys,  other  than,  &c.  and  was  within  the  bounda- 
ries of  the  said  selection :  Averment,  that  no  part  of  the  said 


1835.]  OP  PENNSYLVANIA.  28T 

(Coxe  v.  Tilghman.) 

l-3rd  of  the  said  16,800  acres  was  taken  away  by  elder  surveys 
other  than,  &c.  and  that  the  whole  was  within  the  said  boundar- 
ies ;  and  that  the  said  Adam  Kuhn  did  not  pay  the  said  25  cents, 
fee. 

The  rule  to  show  cause  why  the  amended  declaration  should  not 
be  substituted,  coming  up  ; 

Mr.  Inc/raham  in  suport  of  the  rule  referred  to  Wharton's 
Digest,  title  Amendment,  pi.  20  to  pi.  28;  DieU  v.  M'Grlue,  (2 
Rawle,  337  ;)  Lee  v.  Wright,  (1  Rawle,  149 ;)  Commonwealth  v. 
Meckling,  (2  Watts,  130;)  Proper  v.  Luce,  (3  Penn.  Rep.  65.) 

Mr.  W.  Rawle,  Jr.  and  Mr.  B.  Tilghman,  contra,  argued  that 
at  least  the  four  last  counts  of  the  amended  narr.  were  inadmissi- 
ble, since  they  contained  a  new  cause  of  action,  viz.  an  alleged 
covenant  to  pay  for  Adam  Kuhn,  and  for  the  assignees  of  Joseph 
Thomas.  Besides,  in  this  case  there  has  been  an  award  of  arbi- 
trators under  the  old  declaration,  from  which  the  defendants 
appealed ;  and  this  brings  the  case  within  the  principle  of  Tryon 
v.  Miller  decided  at  this  term,  (ante,  p.  11.) 

The  opinion  of  the  Court  was  delivered  by 

SERGEANT,  J. — It  was  settled  soon  after  the  passing  of  the  Act 
of  the  21st  March,  1806,  that  the  plaintiff  is  entitled  to  amend 
his  declaration  or  add  a  new  count  at  any  time  before  or  during 
the  trial  of  the  cause,  provided  he  do  not  introduce  a  new  cause 
of  action.  But  what  amendment  does  introduce  a  new  cause  of 
action,  has  given  rise  to  frequent  controversies ;  and  in  many 
instances  the  amendment  has  been  refused  as  not  coming  within 
the  limit  prescribed.  An  examination  of  the  decided  cases  will 
show  that  in  actions  ex  contractu,  so  long  as  the  plaintiff  adheres 
to  the  original  instrument  or  contract  on  which  the  declaration  is 
founded,  an  alteration  of  the  grounds  of  recovery  on  that  instru- 
ment or  contract,  or  of  the  modes  in  which  the  defendant  has 
violated  it,  is  not  an  alteration  of  the  cause  of  action.  In  an 
action  on  a  policy  of  insurance,  when  the  plaintiff  declared  on 
losses  by  capture  by  an  enemy  and  perils  of  the  sea,  the  court 
permitted  an  amendment  by  adding  a  count  for  loss  by  barratry. 
The  object  of  the  action,  says  Tilghman,  C.  J.  was  to  recover 
for  a  loss  covered  by  the  policy,  and  this  amentment  did  not  go 
out  of  the  policy.  Anon,  cited  by  Tilghman,  C.  J.  in  Rodrigue 


*v.  Curcier,  (15  Serg.  &  Rawle,  83.)  So  in  Cassell  v. 


[*288] 


CooJce,  (8  Serg.  &  Rawle,  268,)  in  debt,  the  declaration 

stated  an  agreement  of  the  10th  August,  1813,  that  Cooke  should 

sell  to  Cassell  an  estate,  for  which  Cassell  covenanted  to  pay  $325 


288  SUPREME  COURT  [Dec.  Term, 

(Coxe  v.  Tilgbman.) 

per  acre,  viz.  one-third  on  the  10th  of  April,  1814,  one-third  on 
the  10th  of  April,  1815,  and  one-third  on  the  10th  of  April,  1816, 
without  interest.  Cooke  covenanted  to  deliver  to  Cassell  a  good 
and  sufficient  deed  on  the  10th  April,  1814,  when  Cassell  was  to 
give  his  bond  for  the  remaining  two-thirds,  with  security,  if  re- 
quired. Possession  was  to  be  given  to  Cooke  on  the  10th  of 
April,  1814,  and  the  parties  were  bound  in  a  penalty  of  $100,000. 
Averments  of  performance  by  plaintiff.  After  the  jury  were 
sworn  and  some  progress  made  in  the  trial,  the  plaintiff  requested 
leave  to  add  a  new  count,  setting  forth  that  the  deed  was  not 
executed  on  the  10th  April,  1814,  at  the  defendant's  request, 
in  consequence  of  his  inability  to  comply  with  his  covenants  ;  that 
it  was  understood  the  articles  remained  in  force,  and  the  defend- 
ant paid  various  sums  to  the  plaintiff  in  part  performance ;  that 
on  the  1 3th  January,  1816,  a  good  and  sufficient  deed  was  exe- 
cuted, which  the  plaintiff  tendered  to  the  defendant  on  or  about 
the  31st  of  January,  1816.  This  was  objected  to  by  the  defend- 
ant, but  admitted ;  and  on  error  brought,  was  held  to  be  right. 
"  It  was,"  says  Mr.  Justice  Duncan,  "  the  assignment  of  a  breach 
of  the  same  covenant  on  the  same  instrument,  to  be  covered  by 
the  same  penalty."  So  in  /Shannon  v.  The  Commonwealth,  (8 
Serg.  &  Rawle,  444,)  it  was  held  that  in  an  action  on  a  sheriff's 
bond,  the  plaintiff  might  amend  his  declaration  by  assigning  new 
breaches  of  the  condition  of  the  bond.  "  The  new  breach,"  says 
C.  J.  Tilghman,  "related  to  the  neglect  or  non-performance  of 
Shannon's  duty  as  sheriff."  And  in  that  case,  the  Chief  Justice 
states  the  very  point  now  in  question  to  have  been  already  de- 
cided, for  he  says,  "  it  has  been  determined  that  under  our  act  of 
assembly,  the  Court  may  permit  the  plaintiff  in  an  action  of  cove- 
nant, to  assign  new  breaches." 

In  Cunningham  v.  Day,  (2  Serg.  &  Rawle,  1,)  the  declaration 
was  in  indebitatus  assumpsit  for  money  had  and  received.  It 
appeared  on  the  trial  that  the  plaintiff  gave  the  defendant  a  mare 
and  $25  in  exchange  for  a  horse.  The  horse  turned  out  to  have 
been  stolen,  and  the  plaintiff  was  obliged  to  give  him  up  to  the 
owner.  The  defendant  had  sold  the  mare  for  a  tract  of  land 
and  $25.  The  Court  holding  that  the  plaintiff  could  only  re- 
cover the  $50  received  by  the  defendant  without  interest,  the 
plaintiff  had  leave  to  amend  by  a  new  count  founded  on  the 
special  contract.  This  on  error  was  held  right,  and  Tilghman, 
C.  J.  says,  "  this  was  no  change  of  the  cause  of  action.  The 
plaintiff  had  been  mistaken  in  the  form  of  his  declaration,  but  it 
was  the  injury  from  the  stolen  horse  for  which  he  sought  re- 
dress." So  where  the  plaintiff  declared  in  assumpsit  for  breach 
of  promise  to  convey  land,  it  was  held  he  might  amend  by  setting 
forth  again  the  breach  of  contract,  blended  with  complaints 


1835.]  OF  PENNSYLVANIA.  289 

(Coxe  v.  Tilghman.) 

*of  fraud.  Carter  v.  M' Michael,  (8  Serg.  &  Rawle, 
441).  In  Rodriguez  v.  Currier,  (15  Serg.  &  Rawle, 
81,)  the  wrong  complained  of  by  the  plaintiff,  and  for  which  he 
sought  redress,  was  the  defendant's  misconduct  as  his  agent  in  the 
sale  of  certain  cottons  consigned  to  him.  This  misconduct  was 
set  forth  in  various  forms  by  the  original  declaration,  and  the 
plaintiff  asked  leave  to  add  several  other  forms  tending  to  the 
same  point.  The  substance  of  the  same  complaints  was  preserved 
in  all  those  forms  ;  that  the  plaintiff  had  been  injured  by  the  de- 
fendant's mismanagement  in  the  business  committed  to  him ;  and 
the  amendment  Avas  allowed.  In  Grratz  v.  Phillips,  (1  Binn. 
588,)  the  writ  and  narr.  in  account-render,  stated  the  defendant 
as  bailiff  and  receiver  of  A.  A  new  count  was  permitted,  describ- 
ing the  plaintiff  as  surviving  partner,  and  his  interest  as  having 
been  held  jointly  with  a  certain  B.  deceased. 

On  the  other  hand,  where  a  new  instrument  or  contract  is  in- 
troduced as  a  ground  of  action,  the  amendment  is  not  permitted. 
Thus  in  Farmer's  Sank  v.  Israel,  (6  Serg.  &  Rawle,  294,)  the 
suit  was  against  the  defendant  as  indorser  of  two  promissory 
notes.  It  appeared  on  the  trial  that  the  notes  were  not  due  ; 
and  it  was  held,  that  an  amendment  introducing  five  other  notes 
entirely  different,  was  not  admissible.  So  in  Newlin  v.  Palmer, 
(11  Serg.  &  Rawle,  98,)  the  plaintiffs  declared  on  a  demise  by 
them  to  the  defendant  of  a  grist  mill  and  tract  of  land,  from  the 
1st  April,  1814,  for  one  year,  at  the  rent  of  $375.  Afterwards, 
by  leave  of  Court,  they  filed  an  additional  count,  alleging,  that 
the  defendant  after  the  expiration  of  the  last  mentioned  term,  viz. 
from  the  1st  of  April,  1815,  continued  to  occupy  the  demised 
premises  as  tenant  to  the  plaintiffs  until  the  1st  April,  1816, 
whereby  he  became  liable  to  pay  an  additional  $375.  "  Here," 
says  Mr.  Justice  Duncan,  "  the  matter  was  entirely  new,  it  was 
a  continuation  of  possession  for  another  year  by  the  permission 
and  sufferance  of  the  plaintiffs.  The  first  declaration  gave  the 
defendant  no  notice  of  preparation  for  the  second  year ;  as  well 
might  the  plaintiff  have  added  a  new  count  on  a  bond  ;"  and  the 
judgment  was  reversed.  In  Canal  Company  v.  Parker,  (4 
Yeates,  363,)  the  declaration  having  laid  that  the  defendant  was 
indebted  to  the  plaintiffs  for  subscription  to  a  canal  company  with 
interest ;  a  new  count  was  refused,  which  demanded  the  penalty  of 
five  per  cent,  per  month,  under  the  act  incorporating  the  com- 
pany. In  Diehl  v.  Ml  Grlue,  2  Rawle  334,  the  plaintiff's  decla- 
ration in  assumpsit  contained  counts  for  goods  sold  an'd  delivered 
with  a  quantum  valebant,  Avork  and  labor  Avith  a  quantum  meruit, 
money  had  and  received,  money  paid  and  expended.  On  the  trial 
the  plaintiff,  to  introduce  evidence  inadmissible  under  the  counts 
as  they  stood,  offered-  an  additional  count,  stating  a  special  agree- 


:>'.>  SUPREME  COURT  [Dec.  Term, 

(Coxe  v.  Tilghman.) 

ment  and  promise  by  the  defendant  to  find  the  plaintiff  constant 
employment  at  coach  or  carriage  trimming  at  a  certain  rate  ac- 
cording to  the  kind  of  work,  for  such  length  of  time  as  should  be 
mutually  agreed  on,  and  breach  thereof,  which  the  Court  below 
r*2Q01  *  rece^ved-  This  court,  on  error,  held  that  it  was  im- 
-1  properly  admitted,  because  it  introduced  a  new  cause  of 
action. 

In  actions  ex  delicto,  the  rule  is  the  same.  The  foundation  of 
the  complaint  laid  in  the  declaration  must  be  adhered  to,  although 
the  modes  of  stating  that  complaint  may  be  varied  by  an  amend- 
ment. Thus  in  Clymer  v.  Thomas,  (7  Serg.  &  Rawle,  178,)  in 
trespass,  the  declaration  stated  the  act  to  have  been  committed  in 
the  township  of  Beaver,  in  the  county  of  Union.  The  plaintiff 
was  allowed  to  amend  the  declaration  after  the  jury  sworn,  by 
inserting  the  name  of  Centre  township  instead  of  Beaver  to  cor- 
respond with  the  fact.  The  substance  of  the  plaintiff's  case, 
says  Tilghman,  C.  J.  was  a  trespass  committed  by  the  defendants 
by  cutting  timber  on  the  plaintiff's  land  in  Union  county.  So  in 
slander,  where  the  words  in  themselves  are  not  actionable,  but  are 
laid  as  spoken  of  the  plaintiff's  trade  or  calling,  the  trade 
may  be  amended.  Rodriguez  v.  Currier,  (15  Serg.  &  Rawle, 
83.)  But  in  trover  for  an  instrument  under  seal,  an  amendment 
is  not  allowable  by  introducing  a  count  for  another  and  different 
instrument  not  under  seal,  constituting  a  simple  contract.  Tryon 
v.  Miller,  (ante  p.  11.)  To  the  same  effect  is  the  case  of 
JCeasby  v.  Donaldson,  (2  Bro.-103),  that  in  trover  leave  will 
not  be  granted  to  add  other  articles.  And  the  plaintiff  having  de- 
clared for  slander,  shall  not  introduce  trover  or  malicious  prosecu- 
tion, or  libel.  4  Yeates,  507. 

The  effect  of  the  act  of  assembly,  says  Mr.  Justice  Gibson,  is 
to  authorize  the  Courts  to  allow  amendments,  after  swearing  the 
jury,  as  fully  as  they  could  do  at  common  law  before  that  period, 
and  also  to  enable  a  Judge  at  Nisi  Prius  to  grant  amendments, 
when  the  cause  is  about  to  be  tried,  which  formerly  could  only  be 
permitted  in  bank.  Farmers  and  Mechanics  Sank  v.  Israel, 
(6  Serg.  &  Rawle,  294)  ;  Wilson  v.  Hamilton,  (8  Serg.  & 
Rawle,  240).  At  common  law  the  rule  was,  that  after  the  end 
of  the  second  term,  the  plaintiff  was  allowed  to  add  a  new  count, 
or  amend  his  declaration,  only  where  the  cause  of  action  was  sub- 
stantially the  same,  but  not  for  a  different  right  of  action.  2  Tidd's 
Prac.  754.  The  reason  of  this  rule  was  that  the  plaintiff  was 
obliged  to  declare  within  two  terms,  and  a  new  right  of  action  was 
considered  as  a  new  declaration.  But  amendments  in  form  or  in 
substance,  not  varying  the  cause  of  action,  could  be  made  at 
any  time,  whilst  the  pleadings  were  in  paper,  and  before  they 
were  entered  of  record. — Ib.  Our  act  carries  this  right  of 


1835.]  OF  PENNSYLVANIA.  290 

(Coxe  v.  Tilghman.) 

amendment  down  to  the  very  period  of  trial  itself ;  and  the 
construction  has  uniformly  been,  that  while  it  never  intended  to 
permit  the  plaintiff  to  change  the  cause  of  action,  yet  any  amend- 
ment short  of  that,  was  within  the  letter  and  spirit  of  the  act, 
whether  in  matter  of  form,  or  in  matter  of  substance  affecting  the 
merits  of  the  case. 

In  the  present  case  the  action  was  covenant  on  an  agreement 
under  seal,  dated  the  25th  of  July,  1806,  between  Edward  Tilgh- 
man and  *  Tench  Coxe,  by  which  the  former  covenanted  r*oq-i-i 
to  purchase  certain  lands  of  the  latter. 

The  original  declaration  contained  four  counts  ;  and  two  addi- 
tional counts  were  afterwards  filed.  All  these  set  out  in  various 
forms  a  breach  of  one  part  of  the  agreement.  The  defendants 
craved  oyer ;  and  the  agreement  being  set  out,  they  put  in  ten 
pleas,  to  which  the  plaintiff  replied  or  demurred.  The  plaintiff's 
motion  now  is  for  leave  to  file  ten  new  counts  ;  the  defendant's 
objections  are,  that  the  1st,  2d,  3d,  4th,  5th  and  6th  contain 
assignments  of  breaches  similar  to  those  in  the  former  counts, 
except  that  the  first  count  avers  that  Tench  Coxe  was  always 
ready  to  convey  or  cause  to  be  conveyed — and  that  his  execu- 
tors after  his  death  offered  to  cause  the  said  lands  to  be  conveyed 
to  the  executors  or  heirs  of  E.  Tilghman.  The  7th,  8th,  9th  and 
10th  counts  of  the  new  declaration  are  said  to  contain  a  new  cause 
of  action,  because  they  set  out  a  breach  of  another  part  of  the 
agreement  not  alluded  to  at  all  in  the  old  counts,  namely  of  cove- 
nant by  E.  Tilghman,  that  Dr.  Adam  Kuhn  would  pay  T.  Coxe 
25  cents  per  acre,  for  certain  share  of  the  lands,  and  also  that 
the  assignees  of  Joseph  Thomas  would  pay  the  like  sum  for  another 
share. 

It  is  manifest  from  the  principles  already  stated,  that  these 
amendments  are  allowable.  The  change  in  the  first  count  is  but 
another  mode  of  alleging  performance  by  the  plaintiffs.  The  7th, 
8th,  9th  and  10th,  assign  new  breaches,  but  the  plaintiff  adheres 
to  the  same  instrument  on  which  the  former  declaration  was 
founded.  No.  other  agreement  is  suggested  or  pretended ;  and  it 
is  set  out  at  length  by  the  plaintiff  on  the  prayer  of  oyer  made  by 
the  defendants. 

Leave  granted  to  file  the  ten  new  counts. 

Cited  by  Counsel,  2  Wharton,  158,  171  ;  3  Id.  422  ;  5  Id.  178 ;  1  Watts 
&  Sergeant,  242,  272  ;  4  Id.  142,  552 ;  7  Barr,  494  ;  8  Harris,  14 ;  10  Id. 
282  ;  1  Casey,  408 ;  8  P.  F.  Smith,  467. 

Cited  by  the  Court,  2  Wharton,  137  ;  4  Watts  &  Sergeant,  277  ;  4  Har- 
ris, 1G2  ;  11  Id.  331. 

See  also,  5  Barr,  256  ;  7  Id.  435 ;  1  Wright,  43. 


292  SUPREME  COURT  [Dec.  Term, 

[*292]  ['PHILADELPHIA,   FEBRUARY  6,  1836.] 

WALTER  against  WALTER  and  Another. 

IN  ERROR. 

1.  Indfbitatus  assumpsit  will  lie  to  recover  the  money  agreed  to  be  paid  for 
owelty  on  a  parol  partition  of  lands  ;  though  there  must  be  an  averment 
of  circumstances  to  take  the  contract  out  of  the  statute  of  frauds. 

2.  Where  there  was  a  special  count  in  an  action  of  assumpsit,  which  al- 
leged, that  the  plaintiff,  defendant  and  others,  being  tenants  in  common 
of  land,  appointed  certain  persons  to  make  partition  and  appraisement, 
and  that  the  persons  so  appointed  did  make  partition  and  appraisement ; 
in  consequence  of  which  the  defendant  became  liable  to  pay  the  plaintiff 
a  certain  sum  for  owelty,  &c. ;  and  there  was  also  an  account  in  indebi- 
tatus  assumpsit ;  and  a  third  count  was  on  an  insimul  computassent ;  and 
the  evidence  offered  was  of  a  partition  made  by  the  tenants  in  common 
among  themselves,  and  of  a  valuation  only,  by  the  appraisers  ;  it  was 
held,  that  although  this  evidence  was  variant  from  the  special  count, 
yet  as  the  plaintiff  was  entitled  to  recover  on  the  second  count,  the  vari- 
ance was  not  cause  of  demurrer. 

3.  A  parol  agreement  by  the  husband  of  a  tenant  in  common,  to  make 
partition,  afterwards  ratified  by  her  by  deed  duly  acknowledged,  is  bind- 
ing ;  and  in  an  action  by  one  of  the  parties  to  the  partition,  the  original 
contract  may  be  declared  on,  and  it  is  not  necessary  to  aver  the  rat.fica- 
tion  specially. 

4.  A  parol  partition  of  lands  was  made  in  the  year  1820,  and  possession 
delivered  pursuant  to  it.     In  1829  a  deed  reciting  the  partition  and  con- 
firming the  same,  was  executed  by  all  the  parties  to  the  partition,  ex- 
cepting the  defendant.     In  indtbitatus  assumpsit  to  recover  the  amount 
payable  by  the  defendant  for  owelty  of  partition,  it  was  held  that  the 
legal  title  not  having  been  completed  unt.l  within  six  years  before  the 
commencement  of  the  suit,  the  statute  of  limitations  was  not  a  bar  to  the 
plaintiff' 's  recovery. 

Tnrs  was  a  writ  of  error  in  the  Court  of  Common  Pleas  of 
Northampton  county. 

In  the  Court  below,  Lambert  Walter  and  Jacob  Seilor,  execu 
tors  of  the  last  will  of  Abraham  Walter,  deceased,  brought  an 
action  of  assumpsit  against  John  Walter,  in  which  the  declara- 
tion recited,  that  Michael  Walter  died  intestate,  &c.  on  or  about 
the  twenty-first  of  February,  A.  D.  1820,  seised  in  his  demesne  as 
of  fee  of  and  in  a  certain  tract  of  land  situate  in  Forks  township 
in  the  county  of  Northampton,  adjoining  lands  of  Jacob  Seip 
and  others,  and  containing  155  acres,  49  perches,  strict  measure, 
more  or  less,  leaving  issue  eleven  children,  to  wit,  John  Walter, 
Barnet  Walter,  Catharine  Walter,  George  Walter,  Jacob  Wal- 
ter, Abraham  Walter,  Michael  Walter,  Peter  Walter,  Elizabeth  in- 
termarried with  George  Belles,  and  Susanna  intermarried  with 
Christian  Kutzler,  to  whom  as  tenants  in  common  the  said  pre- 
mises did  descend  and  come,  and  that  afterward  on  the  first  day 
of  May,  in  the  year  aforesaid  (1820)  the  said  children  severally 


1835.]  OF  PENNSYLVANIA.  292 

(Walter®.  Walter.) 

agreed  each  with  the  other,  to  make  partition  of  the  premises  to 
and  among  them,  according  to  the  *awards,  adjudication  r*oqq-i 
and  appraisement  of  Rudolph  Schweitzer,  Daniel  Brown,  L 
John  Brown,  Melcher  Hay,  Philip  Odenwelder,  Jun.,  John  Rader, 
Jacob  Seip,  Samuel  Neigh,  John  Shoemaker,  and  Philip  Cor- 
rell,  and  that  they  would  severally  pay  to  the  others  respec- 
tively their  several  and  respective  shares  of  any  and  every  sum 
and  sums  of  money  which  on  such  partition,  valuation  and  ap- 
praisements, and  the  accsptance  of  the  purparts  of  such  real 
estate,  should  be  found  due  from  them  or  any  of  them  respec- 
tively to  the  others  of  them  respectively,  when  there  thereunto 
afterwards  they  should  be  severally  or  respectively  required. 
That  afterwards  on  the  second  day  of  May  in  the  same  year,  the 
appraisers  having  taken  upon  themselves  the  burden  of  the  said 
arbitrament,  adjudication,  partition  and  valuation,  made  their 
award  and  adjudication  of  and  upon  the  premises,  making  parti- 
tion thereof  into  eleven  parts,  each  containing  14  acres  19  perches 
of  land,  agreeably  to  a  plot  or  draft  thereof,  and  did  value  and 
appraise  the  said  purparts  respectively  as  follows : 

Number  one  at  and   for   the  sum  of  675 

Number  two   at   and  for  the  sum  of  700 

Number  three  at  and  for  the  sum  of  660 

Number  four  at  and  for  the  sum  of  675 

Number  five  at  and   for  the  sum  of  675 

Number  six   at   and  for    the  sum  of  800 

Number  seven  at  and  for  the  sum  of  775 

Number  eight  at  and  for  the  sum  of  650 

Number  nine  at  and  for  the  sum  of  1100 

Number  ten  at  and   for  the    sum  of  1200 

Number  eleven  at  and  for  the  sum  of  800 

And  that  the  said  children  did  then  and  there  have  notice,  and 
did  severally  and  mutually  promise  and  agree  each  to  and  with 
the  others  respectively,  that  they  should  severally  have  the  right 
to  accept,  select  and  take  the  said  purparts  according  to  seniority, 
at  the  valuations,  the  males  having  the  preference  of  choice  over 
the  females,  and  that  such  of  them  as  accepted  purparts  of  the 
said  premises,  which  were  valued  and  appraised  at  more  than  the 
sum  of  $791. 81|,  should  and  would  severally  pay  to  such  of 
them  as  accepted  purparts  valued  and  appraised  at  less  than  that 
sum,  respectively,  their  proportion  of  such  excess,  for  owelty  of 
partition  according  to  the  said  valuation  and  appraisement. 

The  declaration  then  proceeded  to  set  forth  the  acceptances, 
and  averred  that  John  Walter  thereby  became  liable  to  pay  to 
the  other  children  of  the  said  Michael  Walter  deceased,  who  had 
accepted  purparts  of  the  said  premises,  valued  and  appraised  at 


293  SUPREME  COURT  [Dec.  Term, 

(Walters.  Walter.) 

less  than  $791  81  f,  of  whom  the  said  Abraham  Walter  was  one, 
the  sum  of  $408  19-100  for  owelty  of  partition  as  aforesaid,  and 
that  the  proportion  thereof  due  and  owing  from  the  said  John  to 
the  said  Abraham  was  the  snm  of  $53  32-100 ;  and  the  said  John 
r*9Q-n  Deing  so  indebted  to  *the  said  Abraham  in  his  lifetime 
in  the  sum  of  $53  32-100  on  the  same  day  and  year 
last  aforesaid,  at  the  county  aforesaid,  undertook  and  faithfully 
promised  the  said  Abraham  in  his  lifetime  to  pay  him  the  said  last 
mentioned  sum  of  money,  when  thereunto  afterwards  he  should 
be  requested. 

2d  count.  That  the  said  John  on  the  1st  day  of  January,  1829, 
was  indebted  to  the  said  Abraham  in  his  lifetime,  in  the  further 
sum  of  $100  for  the  owelty  of  partition  of  certain  lands  and  tene- 
ments, theretofore  held  in  common  by  the  said  John  and  Abra- 
ham, and  which  had  before  that  time  been  partitioned  and  divided 
between  them ;  and  being  so  indebted  afterwards,  to  wit,  on  the 
same  day  and  year  last  aforesaid  at  the  county  aforesaid,  under- 
took and  faithfully  promised,  &c. 

3d  count.  That  the  said  John,  on  the  day  and  year  last  afore- 
said, at  the  county  aforesaid,  accounted .  with  the  said  Abraham 
in  his  lifetime  of  and  concerning  divers  other  sums  of  money 
from  the  said  John  to  the  said  Abraham  before  that  time  due  and 
owing,  and  then  in  arrear  and  unpaid,  and  upon  such  accounting 
the  said  John  was  then  and  there  found  to  be  in  arrear,  and  in- 
debted to  the  said  Abraham  in  the  further  sum  of  $100 ;  and 
being  so  found  in  arrear,  and  indebted  he,  the  said  John,  in  con- 
sideration thereof  afterwards,  viz. :  on  the  day  and  year  last  afore- 
said, undertook  and  faithfully  promised,  &c. 

The  defendant  pleaded  non  assumpsit,  and  payment,  with  leave 
to  give  the  special  matters  in  evidence,  non  assumpsit  infra  sex 
annos  and  actio  non  accrevit  infra  sex  annos ;  upon  which  issues 
were  joined. 

The  cause  came  on  for  trial  on  these  pleadings  on  the  27th  day  of 
November,  A.  D.  1832,  and  by  consent,  the  depositions  of  witnesses 
taken  on  a  bill  to  perpetuate  testimony  were  read  in  evidence. 

John  Brown,  a  witness  whose  deposition  was  so  taken,  testified, 
that  some  time  in  the  year  1820  he  was  called  on  by  Michael 
Walter  to  assist  in  the  valuation  of  the  real  estate  of  Michael 
Walter,  deceased,  in  pursuance  of  which  he  met  the  other  persons 
chosen  ;  and  on  the  2d  day  of  May,  1820,  they  made  a  valuation 
of  the  real  estate  of  the  said  deceased  in  parcels,  according  to  a 
survey  or  division  thereof  annexed.  That  he  understood  from 
all  parties  that  each  of  the  heirs  had  chosen  a  man  to  make  a 
valuation,  and  that  they  had  agreed  upon  the  division  according 
to  the  said  survey.  And  that  after  the  valuation  should  be 
made,  the  heirs  should  make  choice  of  their  respective  lots  at  the 


1835.]  OF  PENNSYLVANIA.  294 

(Walter  v.  Walter.). 

valuation  according  to  seniority.  That  John  Walter  was  present 
at  the  valuation,  and  that  the  survey  or  plot  annexed  is  the  survey 
of  the  partition  alluded  to,  and  that  another  paper  identified  and 
annexed  is  the  valuation  made  by  the  persons  chosen,  and  signed 
hy  all  the  appraisers,  with  the  acceptances  of  the  said  lots  respect- 
ively hy  the  heirs  written  thereon.  *  That  he  knows  r*oqe-| 
that  the  parties  accepted  at  the  valuation  their  several 
purparts  of  the  said  real  estate  and  went  into  possession  thereof 
as  follows.  Barnet  Walter,  No.  1,  Abraham  Walter,  No.  2, 
Catharine  Walter,  No.  3,  Peter  Walter,  No.  4,  Christian  Kutzler 
in  right  of  his  wife  Susanna,  No.  5,  Jacob  Walter,  No.  6,  Joseph 
Nicholas  in  right  of  his  wife  Elizabeth,  No.  7,  George  Belles  in 
right  of  his  wife  Mary,  No.  8,  George  Walter,  No.  9,  John  Wal- 
ter, No.  10,  and  Michael  Walter,  No.  11,  each  containing  14  acres 
19  perches.  And  the  several  persons  who  accepted  lots  or  those 
claiming  under  them  have  held  and  enjoyed  the  parts  accepted  by 
them  ever  since.  And  that  John  Walter  is  yet  in  possession  of 
the  said  lot  No.  10  accepted  by  him. 

Philip  Odenwelder  stated  in  substance  the  same  facts,  with  the 
addition  that  George  Rader,  the  person  chosen  by  John  Walter, 
did  not  attend,  but  that  John  Walter  and  the  other  heirs  agreed 
that  the  deponent  and  the  other  nine  persons  should  proceed  to 
make  the  valuation  ;  which  they  accordingly  did.  That  previous 
to  the  meeting  of  the  persons  chosen  to  make  the  valuation,  the 
real  estate  had  been  divided  into  eleven  shares,  each  containing 
fourteen  acres  and  nineteen  perches  agreeably  to  the  survey,  and 
the  men  were  chosen  to  make  a  valuation  of  the  property. 

Melchoir  Hay  stated  in  substance  the  same. 

John  Rader,  Jacob  Seip,  both  stated  the  same,  all  concurring  in 
the  fact  that  the  partition  had  been  previously  agreed  on  by  the 
heirs,  and  that  they  were  merely  chosen  to  put  a  valuation  on  the 
parts. 

Abraham  Hay  stated,  that  some  time  in  the  summer  of  1829, 
he  went  with  Abraham  Walter  to  the  house  of  John  Walter ; 
Abraham  had  an  agreement  with  him  signed  by  all  the  heirs  of 
Michael  Walter  deceased  except  John.  Abraham  asked  John  to  f 
sign  it ;  he  looked  around  at  it,  said  he  had  nothing  to  sign,  and 
then  went  out.  I  understood  that  it  was  an  agreement  that  each 
of  the  heirs  of  Michael  Walter  deceased  should  hold  the  part  of 
the  estate  which  he  had  accepted,  upon  a  division  which  had  been 
made  of  the  same.  The  witness  identified  the  paper.  That  he 
was  not  at  the  valuation  or  partition,  nor  does  he  know  anything 
of  his  own  knowledge  in  regard  to  it. 

John  Bidelman  stated,  that  he  went  with  Abraham  Walter  to 
the  house  of  John  Walter,  Abraham  asked  John  to  sign  an  agree- 
ment, that  the  heirs  of  Michael  Walter,  deceased,  should  hold  the 

VOL.  i.— 20 


295  SUPREME  COURT  [Dec.  Term, 

(Walter  t>.  Walter.) 

parts  of  estate  they  had  accepted  on  a  division  and  valuation. 
John  said  he  had  nothing  to  sign  and  went  out  of  the  house ;  wit- 
ness identified  the  paper. 

The  following  is  a  copy  of  the  paper  referred  to  by  Bidelman : 
"Whereas,  Michael  Walter,  late  of  Forks  township,  in  the 
county  of  Northampton,  farmer,  died  on  or  about  the  twenty-first 
r*9Qfil  ^ay  °f*  February,  in  the  year  of  our  Lord  one  thou- 
J  sand  eight  hundred  and  twenty,  seised  in  his  demesne  as 
of  fee,  of  and  in  a  certain  tract  of  land,  situated  in  the  township 
and  county  aforesaid,  adjoining  lands  of  Jacob  Seip,  Peter  Sny- 
der,  Peter  Koechlein,  Barnet  Walter,  the  heirs  of  John  Arndt, 
deceased,  and  Christian  Butz,  containing  one  hundred  and  fifty 
acres  and  forty-nine  perches,  strict  measure,  be  the  same  more  or 
less,  leaving  a  widow  named  Anna  Maria,  who  is  also  since  de- 
ceased, and  issue  eleven  children,  to  wit :  John  Walter,  Barnet 
Walter,  (of  Pike  county,)  Catharine  Walter,  George  Walter,  (of 
Smithfield,)  Jacob  Walter,  Abraham  Walter,  Michael  Walter, 
Peter  Walter,  Elizabeth,  the  wife  of  Joseph  Nicholas,  Mary,  the 
wife  of  George  Bellas,  and  Susanna,  the  wife  of  Christian  Kutz- 
ler.  And  whereas  the  said  heirs  and  legal  representatives  of  said 
the  deceased,  did  shortly  after  his  decease  choose  and  agree  upon 
Rudolph  Sweitzer,  Daniel  Brown,  John  Brown,  Melchoir  Hay, 
Philip  Odenwelder,  Jr.,  John  Rader,  Jacob  Seip,  Samuel  Neigh, 
Jacob  Shoemaker  and  Philip  Correll,  to  make  a  partition  of  the 
said  premises,  to  and  among  the  said  heirs,  and  to  value  and  ap- 
praise each  purpart.  In  pursuance  of  which  appointment  the  said 
viewers  did  on  the  second  day  of  May,  in  the  said  year  one  thous- 
and eight  hundred  and  twenty,  partition  and  divide  the. said 
premises  into  eleven  purparts,  agreeably  to  the  draft  thereof  here- 
unto annexed,  and  did  value  and  appraise  the  several  purparts  at, 
and  for  the  following  sums  of  money,  that  is  to  say: 

Number  one,  at  the  sum  of  $675 

Number  two,  at  the  sum  of  700 

Number  three,  at  the  sum  of  -  660 

Number  four,  at  the  sum  of  -  675 

Number  five,  at  the  sum  of  -  675 

Number  seven,  at  the  sum  of  -  775 


Number  eight,  at  the  sum  of 
Number  nine,  at  the  sum  of 
Number  ten,  at  the  sum  of 
Number  eleven,  at  the  sum  of  - 


650 
1100 
1200 

800 


And  thereupon  it  was  mutually  agreed  by  and  among  the  said 
heirs  and  legal  representatives  of  the  said  deceased,  that  the  third 
part  of  the  said  valuation  money  should  remain  charged  thereon, 
the  interest  whereof  should  be  paid  unto  Anna  Maria  Walter,  the 


1835.]  OF  PENNSYLVANIA.  296 

(Walters  Walter.) 

widow  of  the  deceased,  during  her  life,  and  that  such  of  the  heirs 
as  accepted  purparts  valued  at  more  than  $791  81  f  should  pay 
to  such  as  accepted  lots  valued  at  less  than  that  sum,  their  re- 
spective proportions  of  such  excess,  according  to  the  valuation  of 
the  purparts  accepted  by  them,  and  it  was  also  further  agreed, 
that  there  should  be  allowed  and  opened  for  the  use  and  benefit 
of  the  owners  of  the  several  lots  or  purparts,  a  road  or  way  of 
the  width  of  one  perch,  on  the  line  between  the  lots,  from  the 
corner  of  Christian  Butz's  land,  and  from  the  road  leading  from 
Arndt's  Mill,  to  Jacob  Seip's  land,  and  throughout  to  Barnet 
Walter's  land.  And  thereupon  *  afterwards  the  said 
heirs  accepted  the  said  purparts  respectively,  as  follows, 
that  is  to  say  : 

Barnet  Walter  accepted  lot  or  purpart  No.  1. 

Abraham  Walter  accepted  lot  or  purpart  No.  2, 

Catharine  Walter  accepted  lot  or  purpart  No.  3, 

Peter  Walter  accepted  lot  or  purpart  No.  4. 

Christian  Kutzler,  in  right  of  Susanna  his  wife,  accepted  lot 

or  purpart  No.  5, 

Jacob  Walter  accepted  lot  or  purpart  No.  6, 
Joseph  Nicholas,  in  right  of  Elizabeth  his  wife,  accepted  lot 

or  purpart  No.  7. 
George  Bellas,  in  right  of  Mary  his  wife,  accepted  lot  or 

purpart  No.  8. 

George  Walter  accepted  lot  or  purpart  No.  9. 
John  Walter  accepted  lot  or  purpart  No.  10,  and 
Michael  Walter  accepted  lot  or  purpart  No.  11,  at  the  valu- 

ation and  upon  the  agreements  aforesaid. 


,  it  is  hereby  agreed  that  the  said  John  Walter,  Barnet 
Walter,  Catharine  Walter,  George  Walter,  Jacob  Walter,  Abra- 
ham Walter,  Michael  Walter,  Peter  Walter,  Joseph  Nicholas  and 
Elizabeth  his  wife,  George  Bellas  and  Mary  his  wife,  and  Chris- 
tian Kutzler  and  Susanna  his  wife,  and  their  respective  heirs  and 
assigns,  for  ever  shall  severally  hold  the  said  purparts  or  lots,  so 
as  aforesaid  accepted  by  them.  The  aforesaid  John  Walter,  Jacob 
Walter,  George  Walter  and  Michael  Walter  severally  paying  to 
the  other  heirs,  the  sums  falling  due  them,  according  to  the  agree- 
ment aforesaid,  for  owelty  of  partition,  and  that  the  said  several 
heirs  and  their  heirs  and  assigns,  owners  of  the  said  premises, 
forever  shall  have  the  use  of  the  said  before-mentioned  road,  and 
each  owner  shall  keep  the  same  in  repair  so  far  as  the  same  passes 
through  his  premises. 

"  In  witness  whereof  the  said  heirs  and  legal  representatives  of 
the  said  deceased  have  hereunto  set  their  hands  and  seals,  the 
fourth  day  of  July,  in  the  year  of  our  Lord  1829." 


297  SUPREME  COURT  [Dec.  Term, 

(Walter  n.  Walter.) 

This  deed  was  executed  by  all  the  heirs  excepting  John  Wal- 
ter ;  and  it  was  duly  acknowledged  by  the  married  women  so  as 
to  pass  their  estates. 

The  following  is  the  paper  referred  to  as  containing  the  valua- 
tion. 

"  The  real  estate  of  Michael  Walter,  late  of  Forks  township, 
deceased,  is  divided  by  a  jury  choshen  by  the  heirs  of  the  said 
deceased  as  folows,  to  wit,  beginning  at  the  line  of  Earned  Wal- 
ter, and  valued  at 

No.     1,  $675  Mein  Lot  Bernhart  Walter,  (in  German.) 
No.     2,     700  Mine  Lot  Abraham  Walter, 

*No.     3,     660   Mine   Lot  Catharine  Walker,   her 

mark  X, 

No.     4,     675  Mine  Lot  Peter  Walter, 
No.     5,    675  Chr.  Kutzler, 

No.     6,     800  Main  Lot,  Jacob  Walter, 
No.     7,     775  Joseph  Nicholas, 

No.     8,     659  George  Bellas,  his  lot, 

No.     9,  1100  George  Walter,  the  Old  Stand. 

No.  10,  1200  Mine  Lot,  (Abraham's  lot  and  buildings,)  John 

Walter, 
No.  11,     800  Mine  Lot,  Michael  Walter,  X  his  mark. 

"  We,  the  subscribers  hereof,  haven  appreised  and  valued  the 
above  real  estate  as  above  stated,  and  the  parties  agreed  in  the' 
presens  of  the  all  the  subscribers,  that  a  road  shall  be  alowed  of 
one  perch  ivid  on  the  line  between  the  lots  to  be  gape  oppen,  to 
pase  and  repase  from  the  corner  of  Christian  Butz,  his  land,  and 
from  the  road  leatin,  from  Arndt  Mill  to  Jacob  Seips  and  tru- 
wout  to  the  line  of  Earned  Walter,  the  beginning  of  the  numbers 
of  the  above  lots:  as  witness  our  hands  this  2d  day  of  May,  A.  D. 
1820. 

RUDOLPH  SCHWEITZER,  JOHN  RADER, 

DANIEL  BROWN,  JACOB  SEIP, 

JOHN  BROWN,  SAMUEL  NEIGH, 

MBLCHOIR  HAY,  JOHN  SHOEMAKER, 

PHILIP  ODENWELDER,  JUNR,  PHILIP  CORRELL." 

After  the  plaintiff  had  gone  through  with  the  evidence,  the  de- 
fendant demurred  to  the  evidence,  the  plaintiff  joined  in  demur- 
rer, and  the  jury  found  a  verdict  for  the  plaintiff  and  assessed 
damages  at  $90  .29-100,  subject  to  the  opinion  of  the  Court  on 
the  demurrer  to  the  evidence. 

The  following  causes  of  demurrer  were  assigned : 
"  First.     That  the  evidence  does  not  support  the  declaration, 
there  being  a  material  variance   in   this:    that  the  declaration 


1835.]  OF  PENNSYLVANIA.  298 

(Walter  v.  Walter.) 

states  that'  the  appraisers  "  took  upon  themselves  the  burthen  of 
the  said  arbitrament,  adjudication,  partition  and  valuation,"  and 
"did  make  their  award  and  adjudication  of  and  upon  the  pre- 
mises, making  partition  thereof  into  eleven  parts,  &c."  Whereas 
all  the  evidence  shows  that  the  partition  had  been  made  by  the 
heirs,  and  a  survey  and  plot  made  according  to  the  partition, 
before  the  appraisers  acted  on  the  submission  at  all,  and  that  all 
that  was  required  of  the  appraisers  was  to  make  a  valuation  of  the 
respective  purparts. 

Second.  That  the  partition  though  equal  in  quantity  was 
unequal  in  value,  and  being  made  by  femes  covert  was  not  bind- 
ing, and  that  all  must  be  bound  or  none. 

Third.  That  if  the  plaintiff  ever  had  a  cause  of  action  against 
the  defendant,  it  is  barred  by  the  statute  of  limitations. 

Fourth.  That  there  is  no  proof  of  an  express  promise  by  John 
*  Walker  to  pay  the  difference  between  the  value  of  the  r*oqq-| 
part  accepted  by  him  and  his  share  in  the  whole  valua-  L 
tion,  nor  any  evidence  from  which  a  jury  could  be  warranted  in 
inferring  such  a  promise  ;  and  indebitatus  assumpsit  will  not  lie 
for  owelty  of  partition  in  money,  of  lands  held  in  common." 

The  demurrer  was  argued  by  counsel  and  held  under  advise- 
ment till  the  of  1834,  when  the  Court  rendered 
judgment  for  the  plaintiffs  on  the  demurrer. 

Whereupon  this  writ  of  error  was  sued  out. 

In  this  Court  the  following  errors  was  assigned  : 

"1.  The  Court  erred  in  rendering  judgment  for  the  plaintiff 
on  the  demurrer  to  the  evidence  ;  the  Court  should  have  ren- 
dered judgment  for  the  defendant  for  the  causes  of  demurrer  set 
forth. 

2.  If  any  judgment  could  have  been  rendered  for  the  plaintiffs, 
it  should  have  been  a  special  judgment  de  terris. 

3.  The  action  was  improperly  brought  in  the  name  of  the  exe- 
cutors of  Abraham  Walter,  deceased.     If  any  action  can  be  main- 
tained, it  should  be  at  the  suit  of  the  heirs." 

Mr.  Brooke  for  the  plaintiff  in  error  : 

1.  The  evidence  did  not  support  the  declaration,  and  it  is  well 
settled  that  a  variance  in  actions  like  the  present  is  fatal.     Arch- 
bold's  Civil  Pleadings,  122,  369  ;  Selwyn's  Nisi  Prius,  title  As- 
sumpsit ;  Stephen  on  Plead.  108  ;  Snell  v.  Moses,  (1  Johns.  Rep. 
96  ;)  Saxton  v.  Johnston,  (10  Johns.  Rep.  418 ;)  Umbehocker  v. 
Russel,  (2  Yeates,  339  ;)  Funk  v.  Arnold,  (3  Yeates,  428.) 
There  is  a  substantial  difference  between  appointing  persons  to 
make  partition,  and  appointing  them  to  make  valuation,  after  a 
partition  has  been  effected. 

2.  I  am  aware  that  the  question  involved  in  the  second  cause 


299  SUPREME  COURT  \I)ec.  Term, 

(Walter  v.  Walter.) 

of  demurrer  may  be  supposed  to  have  been  settled  by  the  case  of 
Rhoads's  Appeal,  (3  Rawle,  420  ;)  but  in  that  case  the  wife  had 
signed  the  original  agreement.  Here  the  married  women  were 
not  parties  in  any  way  to  the  partition.  It  is  true  that  they 
were  parties  to  the  alleged  ratification,  and  acknowledged  the 
deed  according  to  the  act  of  Assembly  ;  but  I  submit  that  the 
original  agreement  was  absolutely  void  and  incapable  of  confirma- 
tion. Co.  Litt.  170,  (6);  Jackson  v.  Vanderheyden,  (17  Johns. 
Rep.  167  ;)  Martin  v.  Dwelly,  (6  Wendell,  13.)  At  all  events 
they  should  have  set  forth  specially  that  they  had  tendered  the 
deed  of  ratification,  instead  of  declaring  upon  the  original  con- 
tract. 

3.  This  is  an  action  of  assumpsit.     The  declaration  sets  forth 
a  contract  dated  the  2d  of  May,  1820.     The  action  was  brought 
to  April  Term,  1831  ;  consequently  the  statute  of  limitation  ope- 
rates as  a  bar.     In  the  calculation  of  interest  made  by  the  plain- 
r*3001     ^'8  *  counsel  and  which  the  jury  adopted,  the  cause  of 

action  is  made  te  commence  on  the  2d  of  May,  1820  ; 
and  this  being  the  time  stated  in  the  declaration,  the  plaintiff  is 
bound  by  it.  Ballantine  on  Limitations,  84,  85  ;  3  Peere  Wins. 
143. 

4.  There  is  no  proof  of  an  express  promise.     And  I  contend 
that  indebitatis  assumpsit  will  not  lie  for  owelty  of  partition. 
Money  directed  to  be  paid  for  owelty  partakes  of  the  character  of 
land,  and  is  subject  to  the  same  rules  of  descent.     Brooke's  Abr. 
title  Partition,  §  5  ;  Co.  Litt.  10,  a  ;  16  Viner,  223,  pi.  3  ;  Plow- 
den,  134  ;  1  Vernon,  133,  was  the  case  of  a  bond. 

Mr.  Porter,  for  the  defendant  in  error,  having  been  requested 
by  the  Court  to  confine  himself  to  the  subject  of  the  statute  of 
limitations,  argued  1st,  that  the  money  allowed  for  owelty  was  a 
lien  upon  the  land  ;  the  recovery  of  which  might  be  enforced  by 
ejectment,  and  consequently  that  the  right  to  recover  it  was  not 
barred  or  lost  until  after  the  expiration  of  20  years.  Boyd  v. 
Grant,  (13  Serg.  &  R.  124  ;)  Higgs  v.  Stimmel,  (3  Penn.  R. 
117  ;)  Allnatt  on  Partition,  12.  [HUSTON,  J. — Suppose  you  have 
a  promissory  note  secured  by  a  mortgage  upon  real  estate,  would 
not  the  statute  bar  an  action  on  the  note  ?]  In  Lenox  v.  Ml  Call, 
(9  Serg.  &  R.  302,)  this  Court  held  that  a  bond  and  mortgage 
were  to  be  considered  as  one  for  the  purpose  of  lien.  Why 
should  we  be  turned  round,  when  there  is  no  doubt  we  could 
recover  in  ejectment?  In  Pidcock  v.  Bye,  (3  Rawle,  183,) 
assumpsit  was  held  to  lie  against  the  assignee  of  land  subject  to 
the  charge  of  the  widow's  thirds,  to  recover  the  principal  amount 
after  her  death.  Judge  Huston  in  that  case,  expressed  his  dis- 
like of  the  idea  that  the  equitable  powers  of  the  Court  are  more 


1835.]  OF  PENNSYLVANIA.  300 

(Walters  Walter.) 

extensive  in  one  form  of  action  than  in  another.  If  we  had  a 
Court  of  Chancery,  a  bill  for  specific  performance  might  be 
brought  which  would  not  be  barred  by  the  statute.  In  Higgs  v. 
Stimmel,  (3  Penn.  Rep.  117,)  Judge  Kennedy  speaks  of  the 
lapse  of  20  years  as  barring  the  recovery  of  the  money  allowed 
for  owelty. 

2d.  The  cause  of  action  did  not  accrue  until  the  execution  of 
the  deed  of  1829.  Hart  v.  Porter's  Executors,  (5  Serg.  &  R. 
201 ;)  Jones  v.  Trimble,  (3  Rawle,  386  ;)  4  Bac.  Abr.  474 ; 
Blanchard  on  Lim.  104,  107.  The  plaintiff  could  not  have  re- 
covered until  he  had  tendered  to  the  defendant  a  deed  for  his 
share  of  the  land.  Steinhauer  v.  Witman,  (1  Serg.  &  R.  446  ;) 
Stoddart  v.  Smith,  (5  Binn.  365 ;)  Jordan  v.  Cooper,  (3  Serg.  & 
R.  564;  2  Saunders,  67  (a)  note  10 ;  6  Modern,  26. 

Mr.  Brooke,  in  reply : 

The  question  is  whether  the  party  is  not  bound  by  the  rules 
applicable  to  the  form  of  action  which  he  has  adopted.  The 
act  of  limitations  is  express  in  relation  to  the  action  of  r*qn-i-i 
assumpsit.  There  is  no  authority  to  support  the  idea  of  L 
a  lien  in  the  case  of  a  voluntary  partition.  The  act  of  1807, 
in  relation  to  compulsory  partitions,  it  is  true,  gives  a  lien  in 
such  cases ;  but  the  provision  shows  that  no  such  lien  exists  at 
common  law.  The  case  of  Higgs  v.  Stimmel,  does  not  sustain 
the  position.  It  is  settled  that  a  lien  does  not  exist  in  this  state 
for  unpaid  purchase  money ;  and  the  reasons  which  have  led  to 
that  conclusion  apply  to  the  case  of  money  payable  for  owelty. 
The  case  of  Higgs  v.  Stimmel,  also  shows  that  the  title  was  suffi- 
cient by  a  parol  partition.  If  such  is  the  law,  the  right  of  action 
accrued  in  1820. 

The  opinion  of  the  Court  was  delivered  by 

GIBSON,  C.  J. — Though  usually  dealing,  for  purposes  of  per- 
formance, with  contracts  but  for  the  sale  of  lands,  and  compelling 
the  vendor  to  fulfil  his  stipulations  by  a  conveyance,  equity  enter- 
tains a  bill  also  for  payment  of  purchase  money,  on  the  ground 
of  reciprocity  of  recourse,  and  not  for  failure  of  remedy  at  law. 
It  seems  formerly  to  have  been  thought  in  Armiger  v.  Clark, 
(Bunb.  Ill,)  that,  as  the  vendor  wants  but  the  purchase  money, 
his  remedy  is  exclusively  at  law.  But  in  Lewis  v.  Lechmere, 
(10  Mod.  506,)  it  was  conceded  by  the  chancellor,  that  he  may 
come  into  equity  also  for  inadequacy  of  redress  at  law;  since 
when,  it  has  come  to  be  a  rudimental  principle  that  he  may  file  a 
bill,  or  bring  an  action  at  his  option.  Newl.  Con.  89, 91 ;  Sugd. 
Vend.  294-5.  Where  he  is  unable  to  prove  the  terms  of  a  special 
agreement,  his  effective  remedy  is  in  equity  by  the  force  of  cir- 


301  SUPREME  COURT  [Dee.  Term, 

(Walter  C.Walter.) 

cumstances.  But  though  the  common  law  may  not  imply  a  pro- 
mise to  pay  in  consideration  of  indebtedness  for  the  price  of  land 
sold,  why  may  not  an  action  of  indebitatus  assumpsit,  on  the 
principle  of  Lang  v.  Keppele,  be  substituted  for  a  bill  in  equity, 
where  the  vendor  has  entitled  himself  to  specific  performance  of 
a  parol  contract  of  sale?  There  is,  perhaps,  no  common  law 
medium,  through  which  the  matter  proper  for  such  a  bill,  can  be 
exhibited  to  a  jury  with  more  convenience  or  advantage.  Had 
exception  been  taken  to  the  count  instead  of  the  measure  of  proof, 
the  late  case  of  Irvine  v.  Bull,  (Sunbury  1835,  4  Watts  287,) 
which  requires  an  averment  of  circumstances  to  take  the  contract 
out  of  the  statute  of  frauds,  would  have  interposed  a  formidable  dif- 
ficulty. A  count  for  the  price  of  land  sold  and  conveyed,  would 
doubtless  be  sufficient ;  and  where  the  contract  had  be*en  partially 
executed,  an  averment  of  possession  given,  would  be  equally  so. 
Here  it  is  not  pretended  that  a  case  of  part  performance  was  not 
made  out  by  the  evidence ;  which,  being  sufficient  to  support  an 
unexceptionable  count,  is  sufficient  to  entitle  the  plaintiff  to  re- 
cover. It  is  immaterial,  therefore,  that  there  is  a  substantial 
variance  between  the  proof  and  the  count  on  a  special  promise  ; 

r*3021     an(^  fc^a^  *nere  *is  no  Pro°f  a*  &H  °f  the  insimul  com- 
-"     putassent.     As  the  plaintiff  was  entitled  to  recover  on 
the  evidence,  it  must  be  intended  that  the  count  to  which  alone  it 
was  applicable,  is  the  foundation  of  the  judgment. 

The  defence  on  the  statute  of  limitations,  could  be  maintained 
but  by  showing  a  cause  of  action  originally  complete  by  delivery 
of  possession  pursuant  to  the  partition.  A  parol  partition  in 
part  executed,  is  undoubtedly  valid,  but  as  vesting  no  more  than 
equitable  title  in  several ty.  The  difficulty  in  Ebert  v.  Wood, 
(1  Binney,  218,)  was  to  get  the  statute  of  frauds  out  of  the  way 
of  the  contract;  to  effect  which,  the  case  was  very  properly 
treated  as  one  of  part  performance ;  but  no  one  dreamed  of  the 
title  being  vested  at  law.  Such  being  the  state  of  the  case  when 
the  parties  here  took  possession  in  several  ty,  on  what  ground  was 
the  difference  to  be  paid  for  owelty,  demandable  before  tender  of 
the  legal  title  ?  If  there  is  any  thing  which  equity  scans  with 
care,  it  is  the  title  which  is  forced  upon  a  purchaser  by  a  decree 
of  performance.  A  summary  of  the  cases  on  this  subject,  is 
given  by  Mr.  Sugden  in  his  Law  of  Vendors,  p.  310,  by  which  it 
appears  that  a  purchaser  will  not  be  compelled  to  pay  for  a  doubt- 
ful or  an  equitable  title ;  nor  will  a  case  to  ascertain  the  solidity 
of  the  legal  title  be  sent  to  the  law  judges  without  his  consent. 
Even  where  they  have  certified  in  favor  of  the  legal  title,  per- 
formance will  not  be  decreed  if  the  chancellor  is  dissatisfied  with 
the  equitable  title  ;  and  wherever  the  point  certified  is  doubtful, 
the  purchaser  may  require  it  to  be  sent  to  other  judges.  Thus, 


1835.]  OF  PENNSYLVANIA.  302 

(Kriderfl.  Lafferty.) 

we  see  that  every  possible  care  is  taken  of  him,  by  seeing  that 
his  title  is  not  only  unimpeachable  but  above  suspicion.  There 
are  undoubtedly  exceptions  to  this,  resting  on  express  or  implied 
terms  of  the  contract,  in  which  a  purchaser  acquainted  with  the 
nature  of  the  title,  and  treating  for  it  without  objection,  Avill  be 
compelled  to  fulfil  his  bargain,  though  circumstances  might  entitle 
him  to  subsequent  relief,  because  he  had  got  what  he  bargained 
for.  But  can  it  be  supposed  that  a  parol  title  is  what  these  parties 
bargained  for  ?  Such  might  be  an  effectual  ground  of  recovery 
or  defence  before  a  jury,  but  not  as  conveniently  so  as  a  title 
vested  by  direct  conveyance ;  and  equity  will  not  compel  a  pur- 
chaser to  accept  a  title  depending  on  facts  collectable  from  circum- 
stances by  a  jury,  but  attended  with  such  doubt  as  to  affect  the 
value  of  the*  estate  as  a  marketable  commodity.  Such  is  the  rule 
in  chancery ;  and  it  appears  to  be  a  just  one.  Can  it  be  intended 
then,  that  these  parties  consented  to  be  satisfied  with  a  title  which 
a  purchaser  of  ordinary  prudence  would  not  have  consented  to 
take,  when  a  better  one  could  be  had  at  the  expense  of  a  scrive- 
ner's fee  ?  To  suppose  so,  would  be  unreasonable.  Now,  a  party 
seeking  performance,  instantly  turns  every  thing  to  be  done  by 
him  into  a  condition  precedent ;  and  as  the  legal  title  was  not  ten- 
dered till  within  six  years  before  the  impetration  of  the  writ,  the 
plaintiffs'  testator  had  not  entitled  himself  to  an  action  in  time  to 
bar  them  by  the  statute  of  limitations. 

Judgment  affirmed. 

Cited  by  Counsel,  5  Wharton,  115  ;  6  Id.  334  ;  8  Watts,  274  ;  9  Id.  107  ; 
3  Watts  &  Sergeant,  331 ;  7  Casey,  327. 
Cited  by  the  Court  below,  4  Harris,  158. 
See  also  7  Harris,  31. 


[*PHILADELPHIA,  FEBRUARY  6,  1836.]  [*303] 

KRIDER  and  Another  against  LAFFERTY. 

IN  ERROR. 

1.  In  trespass  for  breaking  the  plaintiff's  close,  and  carrying  away  his 
goods,  evidence  of  the  value  of  the  goods  is  admissible  on  the  part  of  the 
plaintiff,  although  he  may  have  brought  replevin  for  the  same  goods,  if 
the  defendant  has  pleaded  property  in  that  action,  and  it  is  still  depend- 
ing ;  and  a  fortiori,  if  it  had  been  discontinued,  though  such  discontinu- 
ance was  after  the  commencement  of  the  trial  of  the  action  of  trespass. 

2.  If  a  paper  purporting  to  be  a  receipt,  is  rejected  by  the  Court,  but  after- 
wards admitted  on  proof  of  its  authenticity  by  the  person  signing  it,  the 
rejection  in  the  first  instance  cannot  be  assigned  for  error,  on  the  ground 
that  it  compelled  the  party  offering  it,  to  call  as  a  witness  the  person 


303  SUPREME  COURT.  [Dec.  Term, 

(Krider  e.  Lafferty.) 

signing  it,  who  was  the  witness  of  the  other  party,  and  thus  gave  the 
other  party  the  benefit  of  the  cross-examination. 

2.  In  trespass  against  a  purchaser  at  sheriff's  sale,  where  the  question  was 
whether  the  purchase  included  a  certain  piece  of  ground  in  possession 
of  the  plaintiff;  the  defendant  gave  in  evidence  a  receipt  signed  by  the 
former  owner  of  the  land  sold  at  the  sheriff's  sale,  by  which  he  agreed 
to  give  up  possession  at  a  certain  time  :  it  was  held  that  the  plaintiff 
might  examine  the  witness  who  gave  the  receipt,  to  show  that  it  was 
not  his  intention  to  include  in  the  agreement,  the  lot  occupied  by  the 
plaintiff. 

4.  The  rule  that  parol  evidence  is  not  admissible  to  alter  or  contradict 
written  instruments,  applies  only  to  cases  between  the  parties  to  the  in- 
strument, their  representatives,  and  those  claiming  under  them ;  but  not 
to  strangers.    Per  KENNEDY,  J. 

5.  A  deed  in  the  following  words  :  "Memorandum  of  an  agreement  made, 
&c.,  this  24th  day  of  February,  1816,  between  J.  L.  of,  &c.,  and  D.  L. 
of,  &c.,  witnesseth,  that  the  said  J.  L.  hath  let  unto  the  said  D.  L.,  hi» 
legal  heirs  and  representatives,  a  certain  piece  of  meadow  containing  one 
acre,  &c.,  at  the  rate  of  $15  per  acre,  to  be  paid  by  the  said  D.  L.,  or  his 
legal  heirs,  annually,  to  the  said  J.  L.  his  heirs  and  assigns.     In  witness 
both  parties  have  hereunto  set  their  hands  and  seals,  in  the  year  first 
above  written,"  &c.:  was  held  to  pass  a  fee  simple  to  D.  L.,  subject  to 
an  annual  ground  rent  in  fee,  and  not  to  be  a  lease  for  years  merely. 

6.  Where  the  owner  of  a  lot  of  land  containing  about  twenty  acres,  con- 
veyed one  acre  of  meadow  land  to  A.,  who  neglected  to  record  his  deed, 
but  took  possession  and  planted  it  with  willows  for  the  purpose  of  his 
trade  of  basket  making,  which  willows  he  cut  every  year  at  the  proper 
season,  and  he  continued  in  this  possession  about  14  years,  when  the  land 
of  his  vendor  was  sold  at  a  sheriff's  sale ;  it  was  held  that  the  possession 
of  A.  was  sufficiently  distinct  and  unequivocal  to  give  notice  to  the  pur- 
chaser at  the  sheriff's  sale. 

7.  It  cannot  be  assigned  for  error,  that  the  court  below  declined  answering 
a  question  put  to  them  by  a  juror,  on  a  point  of  law. 

UPON  a  writ  of  error  to  the  District  Court  for  the  City  and 
County  of  Philadelphia,  it  appeared  that  an  action  of  trespass 
was  brought  in  that  court  by  Daniel  Lafferty  against  John  J. 
Krider  and  Joshua  Peeling,  to  recover  damages  for  breaking  and 
entering  the  plaintiff's  close,  &c.,  under  the  following  circum- 
stances: 

John  Lentz  the  elder,  being  the  owner  of  a  tract  of  land  situate 
in  the  township  of  Passyunk  and  county  of  Philadelphia,  contain- 
f*3041  ing  *  18  acres  and  20  perches,  on  the  24th  of  February, 
-"  1816,  executed  the  following  instrument: 

"  Mem.  of  an  agreement  made  and  this  24th 

day  of  February,  one  thousand  eight  hundred  and  sixteen,  between 
John  Lentz,  of  the  township  of  Passyunk,  county  of  Philadel- 
phia, farmer,  of  the  one  part,  and  Daniel  Lafferty  of  the  same 
place,  basket-maker,  of  the  other  part,  witnesseth 

That  the  said  John  Lentz  hath  let  unto  the  said  D.  Lafferty, 
his  legal  heirs  and  representatives,  a  certain  piece  of  meadow 
containing  one  acre,  be  the  same  more  or  less,  at  the  rate  of 


1835.]  OF  PENNSYLVANIA.  304 

(Krider  t.  Lafferty. ) 

fifteen  dollars  per  acre,  to  be  paid  by  the  said  Daniel  Lafferty  or 
his  legal  heirs  annually,  to  the  said  John  Lentz,  his  heirs  and 
assigns. 

In  witness  both  parties  have  hereunto  set  their  hands  and  seals 
in  the  year  first  above  written. 

JOHN  LENTZ,  [L.  s.] 
DANIEL  LAFFERTY,  [L.  s.]  " 

Lafferty  took  possession  under  this  instrument',  and  for  several 
years  cultivated  willows,  to  be  used  in  his  trade  of  basket- 
making. 

Lentz  died  in  the  year  1817,  and  by  virtue  of  proceedings  in 
partition  in  the  District  Court,  the  said  tract  of  18'  acres  and  20 
perches  was  sold  by  the  sheriff,  and  purchased  by  Krider  one  of 
the  defendants,  in  the  month  of  September,  1830. 

In  the  spring  of  1831,  he  sent  some  men  to  cut  the  willows  ; 
which  was  the  trespass  complained  of. 

The  declaration  contained  two  counts, — 

1.  For  breaking  and  entering  the  plaintiff's  close,  treading  down, 
trampling  upon  and  spoiling  the  plaintiff's  willows,  and  cutting 
down  the  willows,  and  taking  and  carrying  away  the  willow  twigs, 
&c.,  and  converting  and  disposing  thereof,  and  breaking  down, 
prostrating  and  destroying  the  plaintiff's  fences. 

2.  For  cutting  down  and  destroying  the  plaintiff's  willows  and 
carrying  them  away,  and  converting  them,  &c. 

Issue  having  been  joined  on  the  plea  of  not  guilty,  the  cause 
came  on  for  trial  in  the  District  Court,  on  the  8th  of  November, 
1833,  when  the  plaintiff,  after  giving  in  evidence  the  foregoing 
instrument  of  the  23d  of  February,  1816,  examined  Daniel  Cop- 
pall,  a  witness,  who  testified  as  follows  : 

"  Lafferty  used  to  be  in  possession  of  a  one  acre  willow  lot : 
whether  he  was  or  not  when  the  willows  were  cut,  I  don't  know. 
I  can't  say  whether  he  planted  the  willows.  It  was  a  willow  lot 
long  back.  It  *  always  went  by  the  name  of  Daniel  r^qn^l 
Lafferty's  Garden,  since  I  knew  it ;  I  have  known  him 
cut  the  willows  on  it.  He  keeps  a  tavern  on  the  banks  of  the 
Schuylkill,  farms,  and  last  season  followed  basket-making.  I 
went  there  to  help  Peeling  cut  willows  down  in  April,  1831. 
We  had  cut  down  all  but  some  which  were  in  the  water,  which 
was  cold,  and  we  thought  we  would  leave  them  for  a  warm  day. 
We  had  tied  up  18  or  20  bundles.  Lafferty  came  and  asked  by 
whose  authority  we  cut.  Peeling  said,  by  Mr.  Krider's.  Laf- 
ferty said  he  considered  them  his  property,  and  forbad  Peeling 
taking  them  away.  Peeling  said  if  that  was  the  case,  he  would 
quit  them  arid  let  them  be.  We  left  the  garden  and  all  went 
away  together.  Lafferty,  Peeling,  Wm.  Hoffner,  a  man  named 


305  SUPREME  COURT  [Dec.  Term, 

(Kridere.  Lafferty.) 

Billy,  myself,  and  I  think  one  or  two  of  Peeling's  men,  all  went 
with  intention  to  help  Peeling  cut  down  willows.  Peeling  is  a 
basket-maker,  lives  near  the  Buck.  Lafferty  wished  him  to  leave 
them  till  Monday  morning,  he  would  show  him  something.  Can't 
say  how  many  bundles  were  cut,  as  we  did  not  tie  them  up.  I 
am  a  basketrmaker.  It  was  the  proper  season  for  cutting  wil- 
lows. We  had  tied  18  or  20  bundles,  not  a  quarter  of  them.  I 
have  bought  willows  sometimes,  can't  say  for  how  much.  I 
remember  its  being  called  Lafferty's  Garden  ten  or  twelve  years 
ago." 

The  plaintiff  then  called  a  witness  to  prove  the  value  of  the 
willows  cut  by  the  defendant's  order ;  but  the  defendant's 
counsel  objected  to  any  evidence  being  given  of  their  value,  on 
the  ground  that  an  action  of  replevin  had,  previously  to  bringing 
this  suit,  been  instituted  by  Lafferty  against  Peeling,  in  the  Court 
of  Common  Pleas  ;  wherein  the  defendant  had  claimed  property 
and  given  a  property  bond  to  the  sheriff.  The  plaintiff's  counsel, 
however,  produced  a  certificate  from  the  prothonotary  of  the 
Court  of  Common  Pleas,  dated  on  the  day  of  the  trial,  setting 
forth  that  the  action  of  replevin  had  been  discontinued  on  that  day. 
The  Judge  admitted  the  evidence,  and  the  defendant's  counsel 
excepted. 

On  his  part,  the  defendant  gave  in  evidence  the  sheriff's  deed, 
bearing  date  the  20th  of  September,  1830,  and  acknowledged  on 
the  24th  of  the  same  month,  conveying  to  him  in  fee  (inter  alia) 
the  said  one  acre  lot.  He  then  called  Richard  Peltz,  a  witness, 
who  testified  as  follows  : 

"  I  am  the  son-in-law  of  the  late  John  Lentz,  and  the  acting 
executor  of  his  will.  I  am  acquainted  with  the  two  tracts  of 
land  mentioned  in  the  sheriff's  deed.  It  includes  the  acre  of 
.  willow  ground.  The  whole  property  in  the  deed  was  during  the 
life  of  John  Lentz,  senior,  let  by  him  to  his  son  John  Lentz, 
junior.  John  Lentz,  junior,  held  the  property  as  tenant  from 
March  1817,  till  the  sale  to  Krider.  After  the  death  of  his 
father,  John  Lentz  paid  the  rent  to  me  as  acting  executor.  I 
r*30fil  never  knew  as  executor,  any  one  *  as  tenants  of  the 
property  but  John  Lentz.  No  one  but  John  Lentz  paid 
me  the  rent.  I  gave  him  receipts  for  the  whole  rent  due  the 
heirs,  and  took  receipts  from  him  for  his  portion  of  what  might 
be  due,  exchanging  the  balance  of  money  which  might  be  due 
from  one  to  the  other.  I  settled  yearly  with  him.  John  Lentz 
is  also  an  executor.  The  executors  of  John  Lentz,  sen.,  are, 
Philip  Peltz,  John  Lentz  and  myself.  The  lease  was  originally, 
as  I  understood,  from  old  John  Lentz,  for  his  son  to  take  posses- 
sion, and  rent  to  commence  on  the  first  of  March,  1817.  He  had 
possession  before,  but  the  rent  to  commence  then  ;  John  had 


1835.]  OF  PENNSYLVANIA.  306 

(Krider0.  Lafferty.) 

possession  before  1817 ;  but  I  can't  say  he  had  particularly  pos- 
session of  that  one  acre  lot,  but  his  father  gave  him  permission  to 
do  as  he  pleased  as  tenant.  John  Lentz,  jr.,  knew  Lafferty  had 
a  lease  of  the  acre  lot,  and  was  in  possession,  at  the  time  he  took 
the  farm  of  his  father.  I  do  not  know  that  Lafferty  was  in  the 
habit  of  settling  and  paying  rent  to  John  Lentz  as  executor.  I 
knew  that  Lafferty  had  taken  that  acre  of  land  from  John  Lentz, 
deceased,  and  had  planted  willows  in  it ;  and  I  knew  that  in  the 
arrangement  between  John  Lentz  and  his  father,  he,  John  Lentz, 
jr.,  was  to  receive  the  rent  from  Lafferty  for  his  own  private  use. 
I  knew  this  from  the  father  and  son.  The  son  was  to  receive  the 
rent  from  Lafferty  for  his  own  private  use.  The  lot  was  a  grass 
lot  or  meadow  before  Lafferty  took  it.  Lafferty  occupied  it  from 
the  date  of  his  lease,  24th  February,  1816,  till  the  time  of  the 
sale  by  the  sheriff." 

Philip  Peltz,  another  witness  produced  by  the  defendant,  testi- 
fied that  he  was  one  of  the  executors  of  Lentz,  that  he  never  re- 
ceived any  rent  from  Lafferty  or  any  other  person,  and  as  execu- 
tor, he  did  not  know  Lafferty  as  tenant :  that,  however,  he  knew 
that  Lafferty  held  the  willow  garden  from  the  date  of  the  lease, 
sixteen  or  seventeen  years,  till  the  property  was  sold. 

The  defendant's  counsel  then  offered  in  evidence  (having  proved 
the  hand-writing,)  a  paper  signed  "John  Lentz,"  dated  the  14th 
of  September,  1830,  which  was  alleged  to  be  an  acknowledg- 
ment of  the  receipt  of  the  sum  of  $10,  as  a  consideration  for  deliv- 
ering immediate  possession  of  the  land  purchased  by  the  latter  at 
the  sheriff's  sale.  The  plaintiff's  counsel  objected  to  the  admis- 
sion of  the  paper,  and  the  Judge  refused  to  permit  it  to  be  read ; 
to  which  also  the  defendant  excepted. 

The  defendant's  counsel  then  called  John  Lentz,  who  testified 
that  the  receipt  was  signed  by  him  and  that  Lafferty  had  no. 
notice  of  the  arrangement,  to  his  knowledge.     On  his  cross-ex- 
amination, he  was  asked  "  what  the  money  mentioned  in  the  re- 
ceipt was  paid  for,"  to  which  question  the  defendant's  counsel  ob- 
jected;    but  the  Judge  *  permitted  it  to  be  put,  and     r*qn7T 
another  exception  was  taken.     The  witness,  in  answer 
to  the  question  testified  as  follows : 

"  The  money  was  paid  for  possession  of  the  premises  I  occu- 
pied, with  the  exception  of  the  turnip  patch.  It  was  not  paid  for 
the  possession  of  the  willow  lot ;  I  never  considered  it  in  my 
possession.  Previously  to  Lafferty 's  taking  the  lot,  I  had  offered 
my  father  a  price  for  the  farm  including  that  lot.  He  did  not 
think  proper  to  take  my  offer,  and  afterwards  let  the  lot  to 
Lafferty  for  willows.  This  was  upwards  of  a  year  before  my 
father  and  I  had  agreed.  I  offered  to  pay  my  father  seven 
hundred  dollars  a  year.  He  refused,  but  after  letting  the  willow 


307  SUPREME  COURT  [Dec.  Term, 

(Krider  «.  Lafferty.) 

lot  he  accepted  the  seven  hundred  dollars,  and  I  considered  for 
that  reason  I  was  to  receive  the  rent  for  the  plaintiff's  lot.  He 
never  let  me  the  willow  lot.  I  knew  it  was  let  to  plaintiff,  and 
my  father  knew  that  I  knew  it.  Lafferty  got  the  lot  for  fifteen 
dollars  a  year.  My  original  offer  of  seven  hundred  dollars  in- 
cluded the  willow  lot  and  all,  and  for  that  reason  I  considered 
myself  entitled  to  receive  the  rent  for  the  willows.  My  father 
died  in  September  afterwards.  He  never  let  me  the  willow  lot. 
My  father  agreed  I  should  have  the  place.  Nothing  was  said 
between  him  and  me  about  the  willow  lot.  No  objections  were 
made  to  my  receiving  the  fifteen  dollars,  by  the  rest  of  the  heirs. 
I  received  the  rent  for  the  willows,  not  as  executor,  but  as  an  in- 
dividual, as  my  right.  It  was  understood  by  the  executors  that 
I  was  entitled  to  receive  that.  The  rent  was  paid  to  me  by 
Lafferty.  Lafferty  planted  the  willows  I  think  in  1816  :  part  I 
think  in  1817.  He  appeared  to  me  to  take  care  of  them.  He 
cleaned  the  grass.  Willows  begin  to  sprout  the  second  year. 
I  should  not  suppose  they  were  in  their  prime  before  the  third 
year.  There  was  an  understanding  between  Lafferty  and  me  as 
to  my  receiving  the  rent  ;  but  none  as  to  the  character  in  which 
I  received  the  rent,  and  he  paid  it  to  me.  There  were  accounts 
between  Lafferty  and  myself.  I  owed  him  money.  There  is  an 
unsettled  account  between  the  plaintiff  and  me.  We  have  never 
settled  any  accounts.  I  have  received  goods  from  him  and 
manure  sometimes.  He  has  paid  me  money  for  rent.  I  never 
was  Mr.  Lafferty's  landlord,  further  than  as  executor.  I  have 
not  settled  an  account  as  executor  in  the  office.  I  settled  with 
Mr.  Peltz,  he  settled  with  the  office.  I  never  kept  an  account 
of  rents  received  from  Lafferty.  I  had  some  little  entry  of  them 
in  a  book  which  I  have  at  home.  When  my  father  let  me  the 
_  whole  place,  it  included  more  than  was  sold  to  Krider  :  fourteen 
and  a  quarter  acres  besides,  with  the  building.  I  considered  the 
whole  rent  as  seven  hundred  dollars,  and  not  seven  hundred  and 
fifteen  dollars.  I  don't  recollect  that  any  thing  was  said  about 
the  willow  lot,  when  the  arrangement  was  made  by  me  with 
Krider." 

The  defendant's  counsel  then  put  in  the  said  paper,  which  was 
read  as  follows: 


r*°081  *  Received>  September  14th,  1830,  of  John  J.  Kri- 
der, $10  in  full  for  immediate  possession  of  the  18  acres 
and  20  perches  of  land  that  he  bought  of  the  estate  of  John 
Lentz  deceased,  except  the  piece  in  turnips,  which  I  promise  to 
deliver  him  20  bushels,  and  give  him  possession  of  all  the  land  the 
25th  of  November  next.- 

JOHN  LENTZ." 


1835.]  OF  PENNSYLVANIA.  308 

(Krider  v.  Lafferty.) 

When  the  evidence  was  closed  on  both  sides,  the  defendant's 
counsel  requested  the  Judge  to  instruct  the  jury  as  follows  : 

1.  That  the  instrument  of  writing  dated  February  24th,  1816, 
from  John  Lentz  to  the  plaintiff,  is  not  a  lease,  but  if  operative, 
conveyed  to  him  a  fee  simple  in  the  willow  lot,  reserving  an 
annual  rent ;  or  if  not  a  fee,  it  conveyed  to   the   plaintiff  an 
estate,  either  for  his  own  life  or  that  of  Lentz,  and  that  in  either 
case  not  being  recorded  prior  to  the  purchase  by  Krider,  it  was 
void  against  him,  he  having  no  notice. 

2.  That  if  the  instrument  referred  to,  did  not  convey  a  fee,  but 
is  to  be  considered  a  lease,  it  was  void  for  uncertainty,  no  time 
being  mentioned. 

3.  That  if  held  to  be  valid  as  a  lease,  Lafferty  by  payment  of 
rent,  recognized  John  Lentz,  Jr.  as  his   landlord,  became  his 
sub-lessee,  and  had  no  rights  against  the  owner  of  the  property, 
except  through  Lentz,  Jr.,  and  was  not  therefore  entitled  to  notice 
to  quit. 

4.  That  the  arrangement  made   on  the  14th  of   September, 
1830,  between  Krider  and  Lentz,  was  operative  upon  the  sub- 
lessee Lafferty  ;  that  it  was  equivalent  to  or  operated  as  notice  to 
quit,  to  Lentz,  and  was  as  such,  binding  on  Lafferty  his  under- 
tenant :  and  that  at  all  events  it  prevented  any  implied  renewal 
of  the  lease,  after  the  expiration  of  the  current  year. 

5.  That  the  defendants  in  this  case  were  at  most  unintentional 
trespassers,  and  the  plaintiff  entitled  only  to  nominal  damages. 

6.  That  the  willows  having  been  suffered  to  lie  some  time  on 
the  ground  after  they  were  cut,  and  before  they  were  carried 
away,  the  plaintiff  could  not  support  trespass  for  carrying  them 
away. 

The  judge  after  recapitulating  the  evidence,  charged  the  jury 
upon  the  points  presented  to  him  as  follows : 

"  As  to  the  points  of  law  on  which  I  have  been  requested  by 
the  defendant's  counsel 'to  charge  you;  I  instruct  you  that  the 
instrument  of  writing  dated  Feb.  24th,  1816,  from  Lentz  de- 
ceased to  the  plaintiff,  is  a  lease,  and  did  not  convey  to  him  a 
fee  in  the  premises  described  therein,  reserving  an  annual  rent. 
It  is  unskillfully  drawn,  and  on  its  face  is  ambiguous.  It  be- 
gins with  a  mutilated  word,  probably  memorandum,  and  if  so  is 
a  memorandum  under  hand  and  seal  of  the  parties,  by  which  it 
appears  that  the  said  John  Lentz  hath  let  unto  the  said  D.  Laf- 
ferty his  legal  heirs  and  representatives,  a  certain  *piece 
of  meadow  land  containing  one  acre,  be  the  same  more 
or  less,  at  the  rate  of  fifteen  dollars  per  acre,  to  be  paid  by  the 
said  D.  Lafferty  or  his  legal  heirs  annually  to  the  said  John 
Lentz,  his  heirs  and  assigns.  It  is  expressly  a  letting  at  $15 
per  acre  annually.  The  word  let  is  strictly  applicable  to  a  lease 


309  SUPREME  COURT  \J)ec.  Term, 

(Krider  «.  Lafferty.) 

and  not  to  a  deed  in  fee  ;  and  a  lease  is  for  life,  for  years  or  at 
will,  and  always  for  a  less  time  than  the  interest  of  the  lessor 
in  the  premises.  If  this  be  a  lease  for  life,  whether  it  be  for  the 
life  of  the  lessee  or  lessor,  not  being  recorded,  it  is  void  against  a 
purchaser  without  notice.  It  is,  however,  impossible  from  the 
face  of  the  paper  to  ascertain,  with  any  degree  of  certainty,  the 
agreement  of  the  parties  in  regard  to  the  duration  of  the  interest 
intended  to  be  transferred,  and  therefore  the  instrument  on  its 
face  would  be  void  for  ambiguity  and  uncertainty,  if  the  defect 
be  not  explained  and  removed  by  external  evidence,  so  as  to 
give  it  validity  to  a  certain  extent,  e.  g.  as  a  lease  for  a  year  or 
from  year  to  year. 

If  the  evidence  proves  that  the  plaintiff  was  put  in  possession 
of  the  premises,  under  a  rent  of  $15,  by  the  elder  Lentz,  that  he 
cultivated  the  land,  and  paid  or  accounted  for  the  rent  as  tenant 
from  1816  until  the  sheriff's  sale  to  Krider,  the  instrument  of 
writing,  with  the  other  evidence,  may  establish  Lafferty's  right 
as  tenant  from  year  to  year ;  and  as  such  he  was  entitled  to  three 
months'  notice  to  quit  before  the  expiration  of  the  year,  from 
his  lessor  or  his  representatives,  or  his  or  their  assigns,  that  is 
from  Krider,  the  defendant.  If,  however,  he  paid  rent  to  J. 
Lentz,  Junr.  as  his  landlord  individually,  he  became  subtenant 
of  J.  Lentz,  Junr.;  and  notice  to  J.  Lentz,  Junr.  would  be  suf- 
ficient. 

If,  under  the  whole  evidence,  the  jury  are  satisfied  that  Laf- 
ferty went  into  possession  of  the  premises  in  1816,  as  the  tenant 
of  John  Lentz  the  elder,  under  an  agreement  to  pay  an  annual 
rent,  notwithstanding  the  written  lease  was  thus  ambiguous  and 
uncertain ;  that  the  agreement  was  performed  during  the  elder 
Lentz's  lifetime,  and  since  his  death  until  the  purchase  by  Kri- 
der, then  at  the  time  of  Krider's  purchase,  Lafferty's  tenancy 
was  from  year  to  year,  whether  he  held  under  the  executors  as 
their  tenant,  or  as  subtenant  of  John  Lentz  the  younger. 

If  the  plaintiff  was  tenant  of  the  executors,  and  not  a  subtenant, 
he  was  unaffected  by  the  agreement  between  J.  Lentz  and  Kri- 
der, and  the  defendants  had  no  right  to  enter  on  the  premises. 

The  court  would  like  the  jury  to  find  specially,  whether  the 
plaintiff  was  tenant  of  the  executors  or,  the  subtenant  of  J.  Lentz 
the  younger,  as  in  the  latter  event  several  principles  of  law  arise, 
which  will  embarrass  the  case  unnecessarily  unless  such  a  finding 
takes  place. 

If,  however,  the  plaintiff  was  the  subtenant  of  J.  Lentz,  Jun. 
still  he  was  not  affected  by  the  receipt  or  agreement  between 
Lentz  and  Krider,  especially  as  it  is  distinctly  proved  he  had  no 


[*310] 


notice  of  it.     *  A  notice  to  quit  to  Leutz  would  have  been 
sufficient,  without  notice  to  Lafferty. 


1835.]  OF  PENNSYLVANIA.  310 

(Krider  v.  Lafferty. ) 

On  the  4th  point,  I  charge  that  the  law  is  not,  as  contended  by 
the  defendant's  counsel. 

On  the  5th  point,  I  also  give  a  negative  charge.  If  the  jury 
are  satisfied  from  the  evidence  and  law  as  explained  by  the  Court, 
that  the  plaintiff  has  been  injured  in  the  manner  described  in  the 
declaration,  the  jury  may  give  him  in  damages  a  fair  compensation 
for  the  injury  he  has  sustained. 

6th  point.  (The  Judge  here  stated  the  claim  from  the  declara- 
tion.) If  this  lot  were  let  to  grow  willow  twigs  for  basket-mak- 
ing ;  and  the  annual  crop  of  the  plaintiff,  after  breaking  and  enter- 
ing his  close,  was  cut  partly  down  and  partly  destroyed,  and  the 
part  cut  down  was  subsequently,  after  lying  on  the  ground,  by 
the  continuous  and  connected  acts  and  conduct  of  the  defendants, 
taken  and  carried  away  from  the  premises,  such  acts  and  carrying 
away  the  willows  may  be  taken  into  consideration  by  the  jury,  in 
estimating  the  damages  in  this  action.  The  existence  of  the  facts, 
here  referred  to,  is  left  to  the  jury  on  the  evidence  as  matter  of 
fact.  If  these  facts  are  established,  and  particularly  that  the  wil- 
low twigs  were  the  annual  crop  of  the  plaintiff,  trespass  can  be 
sustained  by  the  plaintiff,  for  such  cutting,  taking  and  carrying 
away. 

When  the  judge  had  concluded  his  charge,  one  of  the  jury 
asked  the  following  question,  "  Whose  tenant  is  the  plaintiff  now, 
he  being  in  possession  of  the  premises  ?  "  The  judge  declined 
answering  the  question,  stating  that  "  it  might  embarrass  the  cause, 
and  that  it  was  not  necessary  to  its  decision." 

The  jury  found  a  verdict  for  the  plaintiff  with  $150  damages, 
and  they  also  found,  that  the  plaintiff  was  the  tenant  of  John 
Lentz,  the  elder,  and  not  of  John  Lentz,  the  son. 

The  defendant  having  removed  the  record  to  this  Court,  assigned 
the  following  errors : 

1.  That  the  Court  erred  in  admitting  evidence  of  the  value  of 
the  willows  cut  by  the  plaintiff  in  this  action  of  trespass,  quare 
clausum  fregit,  while  at  the  time  of  the  institution  of  this  suit, 
and  at  the  time  of  the  offering  the  evidence,  an  action  of  replevin 
was  pending  to  recover  the  value  of  the  willows. 

2.  That  the  Court  erred  in  refusing  to  admit  in  evidence  the 
receipt  of  John  Lentz,  dated  September  14th,  1830,  from  John 
Krider  ;  the  hand-writing  of  the  said  Lentz  having  been  proved, 
unless  the  said  Lentz  were  first  examined,  and  proved  that  the 
money  in  the  said  receipt  mentioned,  was  paid  at  the  time  of  the 
giving  thereof. 

3.  That  the  Court  erred  in  admitting  said  Lentz's  testimony,  as 
to  what  the  money  in  the  said  receipt  mentioned,  was  paid  for  ; 
*the  object  of  the  testimony  being  to  vary,  alter,  and     r*oii-i 
contradict  the  said  written  receipt. 

VOL.  i. — 21 


311  SUPREME  COURT  [Dec.  Term, 

(Kridere.  Lafferty.) 

4.  That  the  Court  erred  in  their  answers  to  the  several  points, 
on  which  they  were  requested  by  the  counsel  of  the  plaintiffs  in 
error  to  instruct  the  jury :  because  the  Court  charged  the  jury, 

1.  That  the  instrument  of  writing,  dated  February   24th, 
1816,  from  John  Lentz  to  Lafferty,  did  not  convey  a  fee 
simple  to  Lafferty  in  the  willow  lot,  but  that  the  same  was 
a  lease,  and  did  not  convey  any  freehold ;  and  that  though 
void  on  its  face  for  uncertainty,  the  jury  might  resort  to 
extrinsic  evidence,  and   that  if,  on   the  whole  evidence, 
they  were  satisfied   that   Lafferty   went  into   possession 
under  an  uncertain  lease,  but  which  operated  from  year  to 
year,  and  continued,  then  Lafferty  was  tenant  from  year 
to  year. 

2.  That  the  Court  charged,  it  was  not  void  for  uncertainty, 
but  might  be  construed  a  lease  from  year  to  year. 

3.  Because  on  the  4th  and  5th  points,  the  Court  charged 
negatively,  that  the  positions  therein  stated,  were  not  law. 

4.  Because  on  the  6th  point  the  Court  charged,  that  the  jury 
might  give  damages  for  the  carrying  away  the  willows, 
although  they  were  suffered  to  lie  some  time  on  the  ground 
after  they  were  cut,  and  before  they  were  carried  away  ; 
if  they  believed  the  acts  of  cutting  and  carrying  away  the 
willows  were  continuous  acts. 

5.  Because  the  judge  erred  in  point  of  law  in  his  charge  to  the 
jury. 

6.  Because,  upon  being  asked  by  a  juror,  if  Lafferty  continued 
tenant  for  want  of  notice,  whose  tenant  he  was,  the  judge  declined 
answering  the  question,  declaring  that  it  would  embarrass  the 
cause,  and  was  not  necessary  to  the  decision  of  the  question." 

Mr.  M'  Call  and  Mr.  James  S.  Smith,  for  the  plaintiffs  in  error: 

1.  The  Court  ought  not  to  have  received  evidence  of  the  value 
of  the  willows  cut  ;  that  being  the  subject  of  another  proceeding, 
depending  at  the  time  the  trial  commenced.     Floyd  v.  Browne, 
(1  Rawle,  121.)     The  defendant  did  not  come  prepared  with  evi- 
dence relative  to  value  upon  this  supposition  ;  and  the  discontinu- 
ance was  a  surprise  upon  him. 

2.  The  receipt  of  Lentz  was  admissible  to  prove  that  he  agreed 
to  surrender  the  premises  to  Krider  ;  and  it  ought  to  have  been 
admitted  in  the  first  instance.     By  the  decision  of  the  Court,  we 
were  compelled  to  call  Lentz,  who  was  the  witness  of  the  other 
party.     Toivnsend  v.  Kerns,  (2  Watts,  180  ;)  Rainey  v.  Black, 
(3  Penn.  Rep.  40.) 

3.  Lentz  ought  not  to  have  been  allowed  to  give  evidence  con- 
tradictory of  the  agreement  contained  in  his  receipt.     Snyder  v. 


1885.]  OF  PENNSYLVANIA.  312 

(Krider  v.  Lafferty.) 

Snyder,  *(6  Binn.  483 ;)  Ml  Williams  v.  Martin,  (12     r^o-ion 
Serg.  &  R.  269 ;)    Wallace  v.  Baker,  (1  Binn.  610 ;)     L  ' 
Shepherd  v.  Watson,  (1  Watts,  35.) 

4.  The  Court  erred  in  charging  that  the  instrument  of  the  24th 
February,  1816,  did  not  pass  the  fee.  2  Roll.  Ahr.  424,  pi.  5, 
title,  Rent  Charge ;  Holmes  v.  Seller,  (3  Lev.  305  ;)  G-rantham 
v.  Hawley,  (Hob.  132;)  Shove  v.  Pincke,  (5  Term  Rep.  124;) 
Stouffer  v.  Coleman,  (1  Yeates,  397  ;)  2  Coke's  Inst.  483 ;  Gray 
v.  Holdship,  (17  Serg.  &  R.  414.)  If  this  deed  then  was  a  con- 
veyance in  fee,  it  was  void  as  against  Krider,  by  the  act  of  1775  ; 
not  having  been  recorded.  The  conveyance  or  lease  was  void  for 
uncertainty,  and  could  not  be  explained  by  the  parol  evidence. 
Kemmil  v.  Wilson,  (3  Wash.  C.  C.  Rep.  308.)  That  notice  to  a 
lessee  to  quit,  is  notice  to  a  subtenant,  is  shown  by  the  case  of 
Jackson  v.  £aker,'(lQ  Johns.  Rep.  270;)  5  Bos.  &  Pull.  330. 
The  Court  erred  also  in  saying  that  the  action  might  be  main- 
tained, although  the  willows  had  been  suffered  to  lie  on  the  ground 
after  they  were  cut,  they  not  being  an  annual  crop  like  grass. 
Comyn's  Land.  &'  Ten.  577.  [GiBSON,  C.  J. — Was  not  the  pos- 
session of  Lafferty  such  as  to  give  notice  to  the  purchaser  ?]  It 
would  be  difficult  to  say  that  his  possession  had  sufficient  notori- 
ety. It  consisted  merely  in  cutting  willow  tops  at  certain  seasons. 
In  Billington  v.  Welsh,  (5  Binn.  129,)  it  was  said  by  C.  J. 
Tilghman,  that  possession,  to  amount  to  legal  notice,  must  be  "a 
clear,  unequivocal  possession." 

8.  Another  error  assigned  is  that  the  Judge  did  not  answer  the 
question  of  law  propounded  by  a  juror.  [GiBSON,  C.  J. — A 
Judge  is  certainly  not  bound  to  answer  a  question  put  to  him  by 
a  juror  on  a  point  of  law.] 

Mr.  Holy,  (with  whom  was  Mr.  F.  W,  ffubbell,')  for  the  de- 
fendant in  error,  was  stopped  by  the  Court,  whose  opinion  was 
delivered  by 

KENNEDY,  J. — The  admission  of  the  evidence  complained  of 
in  the  first  error  assigned,  was  certainly  right.  The  circum- 
stance of  another  action  pending  between  the  parties  for  the 
same  cause,  was  not  a  sufficient  objection  to  it.  If  two  actions 
be  brought  for  the  same  cause  at  the  same  time  by  the  plaintiff 
against  the  defendant,  he  may  plead  the  one  in  abatement  of  the 
other,  and  by  this  means  abate  them  both.  Pie  v.  Cook,  (Hob. 
128,  s.  c.  Moore,  864,  pi.  1193 ;)  1  Roll.  Abr.  353  ;  39  H.  6,  13, 
pi.  16,  per  Prisot,  Justice,  cited  5  Mass.  179,  in  note ;  Mayor, 
$c.,  v.  B.  (1  Freem.  401,  pi.  526,  s.  c.  3  Keb.  491;)  3  Burr. 
1434;  Com.  Dig.  Tit.  Abatement;  Ib.  24;  Beach  v.  Norton, 
(8  Conn.  71.)  But  if  one  action  be  commenced  before  the  other, 


312  SUPREME  COURT  \_Dec.  Term, 

(Krider  v.  Lafferty. ) 

the  defendant  may  abate  the  second  by  pleading  the  pendency  of 
the  first;  and  unless  he  plead  it  in  abatement,  he  cannot  take 
advantage  of  it,  because  it  forms  no  bar  to  the  plaintiff's 
r*q-io-i  *right  of  action,  and  therefore  cannot  be  given  in  evi- 
dence under  the  general  issue,  or  any  other  plea  in  bar. 
Beyond,  however,  the  vexation  of  having  two  suits  on  hand,  to 
attend  to  at  the  same  time,  the  defendant  cannot  be  prejudiced ; 
because  after  a  trial  and  judgment  rendered  in  one  of  the  actions, 
no  matter  if  it  be  the  first  or  the  second,  in  respect  to  the  time 
of  its  commencement,  he  may  plead  such  judgment  puis  darrein 
continuance,  in  bar  of  the  other,  and  thus  protect  himself  against 
all  liability  in  it.  Grarvin  v.  Dawson,  (13  Serg.  &  R.  146.) 
The  taking  and  carrying  away  the  willows  were  charged  in  the 
plaintiffs  declaration  as  part  of  his  complaint ;  and  after  evidence 
given  on  the  trial  tending  to  prove  the  fact,  the  evidence  objected 
to,  was  certainly  material  to  the  issue,  and  therefore  properly 
admitted. 

The  second  error  is  not  sustained  either:  because  even  admit- 
ting that  the  Court  were  wrong  in  refusing  to  permit  the  receipt 
to  be  read  in  evidence,  still  they  may  be  considered  as  having 
corrected  their  error  afterwards  by  admitting  it.  The  counsel 
for  the  plaintiffs  in  error,  however,  allege,  that  their  clients  were 
prejudiced,  notwithstanding  the  subsequent  admission  of  the  re- 
ceipt in  evidence  :  because  in  consequence  of  the  Court's  refusing 
to  permit  the  receipt  to  go  in  evidence  to  the  jury  when  first 
offered,  they  say,  that  they  were  compelled  to  adduce  John  Lentz 
jr.,  as  their  witness,  who  was  unfavorably  disposed  towards  them, 
and  in  his  testimony  gave  a  coloring  to  the  case,  in  some  respects, 
that  Avas  untrue  and  calculated  to  prejudice  the  jury  against  them  : 
also,  that  the  plaintiff  below,  who,  as  they  believe,  intended  to 
adduce  Lentz  as  a  witness  on  his  behalf,  by  this  gained  an  ad- 
vantage that  he  could  not  have  had  in  case  he  had  called  him 
first,  by  drawing  from  him  all  the  testimony  he  wished,  in  answers 
to  leading  questions.  It  may  be  that  it  was  no  disadvantage  to 
the  plaintiff  below,  that  the  plaintiffs  in  error  called  John  Lentz, 
jr.,  as  their  witness,  but  still  it  cannot  be  said  with  propriety,  that 
the  Court  below  compelled  them  to  do  so.  If  they  were  con- 
vinced that  the  Court  was  wrong  in  refusing  to  permit  the  re- 
ceipt to  be  read  in  evidence  when  first  offered,  they  ought,  after 
taking  their  bill  of  exceptions  to  the  opinion  of  the  Court  in  this 
behalf,  to  have  passed  Lentz  by,  and  to  have  proceeded  with  their 
other  evidence ;  and  if  they  lost  the  cause,  then  to  have  brought 
their  writ  of  error.  It  will  not  do  then,  to  say  that  they  were 
forced  by  the  decision  of  the  Court,  to  call  Lentz  as  their  wit- 
ness, because  it  was  clearly  at  their  option  to  do  so  or  not  as  they 
pleased.* 

*  Seel  Grant,  347. 


1835.]  OF  PENNSYLVANIA.  313 

(Krider  t>.  Lafferty.) 

But  seeing  that  there  was  no  evidence  given,  when  the  receipt 
was  first  offered,  tending  to  show  that  it  was  given,  or  had  an  ex- 
istence before  the  trespass  was  alleged  to  have  been  committed, 
I  am  inclined  to  think  that  the  Court  was  right  in  rejecting  it ; 
for  to  have  admitted  it  to  be  read  in  evidence  to  the  jury  upon 
proof  merely  that  John  Lentz  junior's  name,  which  was  sub- 
.scribed  to  it,  was  in  his  handwriting,  would  have  been  a  pretty 
dangerous  kind  *of  testimony,  especially  as  Lentz  him-  r*o-Mn 
self  was  still  in  being  and  present,  who  at  least  could  be  L 
called  to  testify,  how  the  fact  was ;  whether  it  was  given  at  the 
time  of  its  date,  and  whether  the  facts  contained  in  it  were  true  or 
not.  For  any  thing  that  appeared  to  the  Court,  when  it  was  first 
offered,  it  might  have  been  manufactured  within  the  last  hour  im- 
mediately preceding,  between  Krider  and  Lentz,  for  the  very 
purpose  of  being  offered  in  evidence,  without  there  being  a  word 
of  truth  in  any  thing  set  forth  in  it ;  this  being  the  case,  it  ap- 
pears to  me  that  it  was  properly  rejected  when  first  offered. 

We  also  think  there  is  nothing  in  the  third  error  assigned.  As 
Lafferty,  the  plaintiff  below,  was  no  party  to  the  receipt,  he  was 
not  estopped  from  gainsaying  the  truth  of  the  matters  alleged  in 
it.  It  was  competent  therefore  for  him  to  show,  if  he  could,  that 
it  was  all  a  fiction,  or  a  contrivance  between  Krider  and  Lentz, 
made  for  the  purpose  of  defrauding  him  of  his  just  'rights :  and 
this  he  was  at  liberty  to  show  by  the  evidence  of  Lentz  himself, 
as  well  as  that  of  any  other ;  for  Lentz,  not  being  a  party  to  the 
suit,  could  be  coerced  at  the  instance  of  either  party,  to  testify 
to  any  thing  within  his  knowledge  that  was  material  to  the  issue. 
If  the  receipt  was  a  misrepresentation  of  the  matter  set  forth  in  it, 
no  one  could  know  it  better  than  Lentz ;  and  therefore  as  re- 
garded knowledge  on  the  subject,  no  body  could  be  better  quali- 
fied to  testify :  And  even  if  it  had  been  concocted  for  a  fraudu- 
lent purpose,  he  would  have  been  bound  to  have  disclosed  it, 
provided  it  were  material  to  the  issue  :  His  being  a  party  to  the 
fraud,  Avould  not  have  excused  him  from  giving  evidence  of  it,  as 
long  as  it  were  of  such  a  nature  as  would  not  subject  him  to  crim- 
inal punishment. 

The  authorities  cited  by  the  counsel  for  the  plaintiffs  in  error, 
showing  that  written  agreements  or  instruments  cannot  be  altered, 
changed  or  contradicted,  have  not  the  least  application :  the  rule 
laid  down  by  them  is  only  applicable  to  cases  of  controversies  be- 
tween the  parties  to  the  agreements,  their  representatives,  and 
those  claiming  under  them,  but  not  to  strangers;  whose  rights 
and  interests  would  truly  be  in-  peril  if  the  rule  were  to  be  ex- 
tended to  them,  in  such  manner  as  to  conclude  them  from  giving 
evidence  tending  to  contradict  such  agreements. 

The  fourth  error  embraces  the  answers  of  the  Court  to  six 


314  SUPREME  COURT  [Dec.  Term, 

(Kridera.  Lafferty.) 

points  submitted  on  the  trial  by  the  counsel  for  the  plaintiffs  in 
error ;  in  each  of  which  they  alleged  the  Court  erred. 

The  first  is,  as  to  the  effect  of  the  deed  given  in  evidence  by 
the  plaintiff,  as  evidence  of  his  title  to  the  locus  in  quo.  The 
counsel  of  the  plaintiffs  in  error,  requested  the  Court  to  instruct 
the  jury  that  it  conveyed  a  fee  simple  to  the  defendant  in  error  ; 
but  the  Court  entertaining  a  different  opinion,  told  the  jury  that 
it  did  not  pass  a  fee.  In  this  I  think  the  Court  was  mistaken  ; 
for  the  deed  in  express  terms  passes  the  land  to  Lafferty,  his 
r*^1  11  legal  heirs  and  representatives,  reserving  a  *rent  of 
fifteen  dollars  to  be  paid  by  the  said  Lafferty  or  his 
legal  heirs,  annually,  to  the  said  John  Lentz,  his  heirs  and  as- 
signs. The  Court  seems  to  have  overlooked  the  words  of  inher- 
itance in  the  deed,  which  certainly  set  forth  the  quantum  of  estate 
intended  to  be  conveyed  ;  and  to  have  taken  up  the  idea  that  as 
the  word  "  let"  is  the  only  term  used  by  the  grantor  in  the  deed, 
to  part  with  his  interest  in  the  land,  it  was  not  sufficient  to  pass  a 
fee  simple,  though  words  of  inheritance  were  used  in  connection 
with  it.  Now  it  is  well  settled,  that  the  construction  of  a  deed 
must  be  as  favorable  and  as  near  to  the  minds  and  apparent  intent 
of  the  parties  as  it  is  possible  it  may  be,  and  the  law  will  permit : 
for  benigne  sunt  facienda  interpretations  chartarum,  propter 
simplicitatem  laicorum.  Et  verba  intentioni,  non  e  contra,  debent 
inservire.  Shep.  Touch.  86;  Co.  Litt.  314,  (6.)  The  words  in 
a  deed  are  not  the  principal  thing  to  be  attended  to,  but  the  de- 
sign and  intention  of  the  parties.  3  Atk.  135 ;  Plowd.  160.  And 
accordingly,  if  the  intent  of  the  parties  appears,  the  law  will 
construe  the  words  in  such  sense  as  to  perform  that  intent,  rather 
than  in  any  other  sense.  Plowd.  154.  The  Court  below,  seems 
to  have  thought  that  a  conveyance  of  land  in  which  the  word 
"let,"  alone,  was  used,  to  pass  the  interest  intended  to  be  con- 
veyed, must  necessarily  be  what  is  strictly  and  technically  called 
a  lease ;  which  Sir  Wm.  Blackstone  says  must  always  be  for  a 
less  time  than  the  lessor  hath  in  the  premises.  2  Bl.  Com.  317. 
And  therefore  something  less  than  the  fee  simple,  which  was  the 
most  the  grantor  could  have  in  the  premises,  passed  by  it.  The 
usual  words  of  operation,  and  as  it  is  said,  most  apt  in  a  lease, 
are  "  demise,  grant  and  to  farm  let."  Shep.  Touch.  266;  Co. 
Litt.  456;  2  Bl.  Com.  317, 18:  and  the  Latin  words,  when  leases 
were  drawn  in  that  language,  were  "  dimisi,  concessi  et  adfinnam 
tradidi."  2  Bl.  Com.  317,  18.  The  word  "let,"  may  therefore 
be  considered  a  translation  of  "  tradidi,"  which  is  from  trado, 
signifying,  "  to  deliver,  give,  or  yield,  to  deliver  up,  to  surrender, 
to  resign,  to  put  into  one's  hands,"  &c.,  and  would  seem  to  be 
quite  as  appropriate  to  show  that  it  was  the  intention  of  the 
vendor  or  grantor,  to  part  with  and  transfer  a  fee  simple  estate 


1835.]  OF  PENNSYLVANIA.  315 

(Krider  v.  Lafferty.) 

to  the  vendee  or  grantee,  when  accompanied  with  a  limitation  to 
the  heirs  generally  of  the  latter,  as  the  words,  "do"  or  "  dedi" 
which  are  considered  to  be  the  most  apt  to  be  used  in  a  deed  of 
feoffinent  in  fee,  (2  Bl.  Com.  310,)  the  most  efficacious  mode  in 
some  respects,  of  conveying  land,  known  to  the  law.  Shep. 
Touch.  204 ;  Co.  Lit.  9,  a,  49  b.  But  it  is  certainly  a  great 
mistake  to  suppose  that  the  words  considered  most  apt  for  any 
particular  species  of  conveyance,  or  indeed,  that  any  of  them,  are 
at  all  necessary  to  the  making  thereof;  for  Lord  Coke  says, 
"  whatever  word  amounteth  to  a  grant,  may  serve  to  make  a 
lease"  Co.  Lit.  45,  b.  The  word  "  demise"  he  also  says,  "is 
applied  to  an  estate  either  in  fee  simple,  fee  tail,  or  for  term  of 
life,  and  so  commonly  is  taken  in  many  writs."  2  Inst.  483. 
So  the  words  "bargain  and  sell,"  are  *not  necessary  to  r*q-i^-i 
constitute  a  deed  of  bargain  and  sale,  in  order  to  pass  a  •• 
fee  simple  or  less  estate  in  land,  under  the  statutes  of  uses  and 
the  statute  of  27  Hen.  8,  c.  16,  requiring  such  deed  to  be  en- 
rolled within  six  months  after  its  date,  if  the  estate  conveyed  be 
a  freehold ;  other  equivalent  words  will  be  sufficient  to  make 
land  pass  by  way  of  bargain  and  sale  ;  such  as  the  words,  "  alien 
or  grant,"  "  demise  and  grant,"  or  if  the  owner  of  land  "  cove- 
nant to  stand  seised  of  his  land  to  the  use  of  another ;"  these  will 
all  amount  to  good  bargains  and  sales,  if  made  for  a  pecuniary 
consideration  or  one  of  pecuniary  value,  though  ever  so  small, 
even  a  barleycorn.  Shep.  Touch.  222  ;  2  Inst.  672;  Fox's  case, 
(8  Co.  186 ;)  Barker  v.  Keat,  (1  Mod.  262,  and  2  Mod.  249.) 
It  is  perfectly  clear  then,  from  the  authorities  on  this  subject,  as 
well  as  from  the  very  structure  of  a  deed  conveying  land,  when 
the  words  "  enfeoff,  give,  grant,  alien,  bargain,  sell,  demise,  let," 
&c.,  or  any  of  them  are  used,  that  it  is  not  to  express  or  to  desig- 
nate in  the  slightest  degree,  the  quantity  of  estate  intended  to  be 
conveyed,  but  merely  for  the  purpose  of  passing  from  the  seller 
to  the  purchaser,  the  estate  therein  described,  by  other  words 
introduced  specially  for  that  end,  giving  to  it,  either  the  charac- 
ter of  a  fee  simple,  fee  tail,  term  for  life  or  lives,  or  for  years  ; 
as  for  instance,  if  it  be  a  fee  simple  that  is  intended  to  be  trans- 
ferred, the  words  "  his  heirs,"  must  be  inserted  immediately  after 
the  name  of  the  purchaser,  for  they  and  they  alone  are  sufficient 
to  make  it  such  according  to  Littleton,  sec.  1.  The  word  "  let," 
in  the  deed  in  question,  according  to  the  rules  of  construction 
already  mentioned,  must  also  be  considered  sufficiently  operative 
to  pass  the  fee  simple  in  the  land,  if  from  the  whole  tenor  of  the 
deed  itself,  it  appears  to  have  been  the  intention  of  the  parties  to 
use  it  for  that  purpose.  That  John  Lentz  intended  to  convey 
by  this  deed,  some  estate  in  the  land  to  Daniel  Lafferty  cannot 
be  doubted ;  and  that  the  Avord  "  let,"  was  used  for  the  purpose 


316  SUPREME  COURT  [Dec.  Term, 

(Kridere.  Lafferty.) 

of  passing  that  estate  or  interest,  whatever  it  was  admits  of  as 
little  doubt,  because  it  is  the  only  word  used  to  which  any  mean- 
ing of  the  kind  can  or  ever  has  been  affixed ;  and  if  the  other 
words  of  the  deed  are  to  be  regarded  as  they  must,  for  in  con- 
struing deeds  or  instruments  of  writing,  effect  must  be  given  to 
every  word  used  therein,  if  it  can  be  done  consistently  with  the 
other  parts  thereof;  it  is  evident  that  the  interest  and  estate, 
thereby  conveyed,  were  not  only  intended  to  be  enjoyed  by 
Daniel  Lafferty  himself,  but  also  by  his  heirs  generally,  without 
any  restriction  or  limitation  whatever ;  which  cannot  be  without 
giving  to  Lafferty  a  fee  simple  estate  in  the  land,  subject  how- 
ever to  a  fee-farm-rent,  as  it  is  termed  by  Littleton,  sec.  216  and 
217  ;  or  a  perpetual  rent,  as  it  is  called  by  Mr.  Hargrave,  in  his 
note  5  to  Co.  Lit.  143,  4 :  and  with  us  usually  called  a  ground 
rent  in  fee.  And  indeed  it  appears  to  me  that  the  deed  in  this 
case,  as  a  conveyance  of  the  land  in  fee,  is  about  as  perfect  as 

f*S17l     ^ie  ^orm  ^iafc  was  ad°Pte(l  and  prescribed  by  an  act  of 
J     *the  Assembly  of  the  Province  of  Pennsylvania,  two  or 
three  years  after  it  was  granted  to  William  Penn,  passed  the  10th 
of  March,  1683,  which  is  in  these  words,  to  wit :  "  A.  B.  of,  &c. 
the         day  of  from  him  and  his  heirs,  grants,  his  acre 

of  meadow  land,  with  all  its  appurtenances  lying  in,  &c.,  to  C.  D. 
and  his  heirs,  for  the  consideration  of  fifteen  dollars  yearly  rent, 
to  be  paid  to  A.  B.  and  his  heirs  and  assigns  upon  the  day 

of  In  witness  whereof,  he  sets  his  hand  and  seal."  See  Hall 
and  Sellers'  vol.  of  the  Province  L.  appendix,  9.  The  word 
"  grant,"  is  used  in  the  form  thus  prescribed,  instead  of  the 
word  "  let,"  which  at  most  is  but  a  verbal  difference,  and  cannot 
change  the  character  of  the  deed  as  a  conveyance  of  the  land,  or 
its  effect. 

The  counsel  for  the  plaintiff  in  error  also,  in  reference  to  this 
deed,  requested  the  Court  to  instruct  the  jury  that  if  it  were 
not  a  conveyance  of  the  fee  simple,  but  a  mere  lease  of  the  land, 
it  was  void  for  uncertainty,  on  account  of  the  time  of  its  duration 
not  being  mentioned.  The  Court,  however,  declined  giving  such 
instruction  to  the  jury,  and  on  the  contrary  advised  them,  that 
taking  the  deed  in  connexion  with  the  conduct  of  the  parties,  of 
which  they  had  parol  evidence  given  to  them,  they  might  con- 
sider it  a  lease  from  year  to  year  ;  this  is  also  complained  of  by 
the  plaintiffs  in  error,  as  being  incorrect ;  and  no  doubt  it  is  so, 
as  has  already  been  shown  in  the  opinion  advanced,  that  a  fee 
simple  passed  by  the  deed.  If,  however  the  counsel  had  asked 
the  Court  to  instruct  the  jury,  that  the  deed  was  void  for  uncer- 
tainty, in  not  describing  the  land  intended  to  be  conveyed,  so  as 
to  enable  its  precise  location  to  be  ascertained,  there  would  have 
been  more  color  for  it  at  least.  But  still  I  do  not  think  that 


1835.]  OF  PENNSYLVANIA.  317 

(Krider  n.  Lafferty.) 

this  would  have  been  available ;  for  notwithstanding  this  uncer- 
tainty, yet  it  was  capable  of  being  rendered  certain  by  the  subse- 
quent act  of  the  parties,  if  not  by  the  act  of  the  vendor  alone. 
For  instance,  if  one  grant  me  three  acres  of  wood  toward  the 
north  side  of  his  wood,  this  is  a  good  grant  and  certain  enough] 
Shep.  Touch.  Tit.  Grant,  page  250.  So  if  one  be  seised  of  two 
acres  of  laud,  and  he  doth  lease  them  for  life,  and  grant  the  re- 
mainder of  one  of  them,  but  doth  not  say  which,  to  J.  S.;  in  this 
case  if  J.  S.  makes  his  election,  as  to  which  he  will  have,  the 
grant  of  the  remainder  to  him  will  be  good :  or  if  a  man  having 
six  horses  in  his  stable,  grants  me  one  of  them,  without  saying 
which,  I  may  choose  which  I  will  have ;  and  having  made  my 
election,  and  not  before,  the  grant  is  good.  See  Shep.  Touch. 
Tit.  Grant,  page  251 :  Perkins,  sec.  74,  76.  According  to  the 
principles  of  these  authorities,  the  location  of  the  land  granted  by 
the  deed,  was  reduced  to  certainty  afterwards,  by  the  act  of  the 
parties  in  setting  it  off  by  metes  and  boundaries,  and  by  the  act 
of  the  grantee  in  taking  possession  of  it  in  the  lifetime  of  the 
grantor,  by  and  with  his  consent. 

But,  still,  notwithstanding  the  Court  erred  in  their  instruction 
to  the  jury  as  to  the  nature  and  effect  of  the  deed,  it  becomes 
necessary  *to  inquire,  whether  any  injury  could  arise  r*qio-i 
therefrom  to  the  plaintiffs  in  error,  for  unless  they  may  *- 
have  been  prejudiced  by  it  with  the  jury;  it  is  not  sufficient 
cause  for  reversing  the  judgment.  The  effect 'of  the  charge  of 
the  Court  was  to  induce  the  jury  to  consider  Lafferty  as  a  tenant 
of  the  land  only  from  year  to  year,  in  place  of  being  a  tenant 
thereof  in  fee  simple.  Now  I  am  utterly  unable  to  perceive  any 
benefit  that  the  plaintiffs  in  error  could  have  derived  from  a 
direction  of  the  Court  to  the  jury,  that  the  deed  passed  a  fee 
simple  estate  in  the  land  to  Lafferty,  that  they  were  not  entitled 
to  claim  in  the  case  of  its  creating  only  a  tenancy  from  year  to 
year. 

Admitting  the  distinction  taken  by  the  counsel  for  the  plain- 
tiffs in  error,  between  a  tenant  in  fee  and  a  tenant  from  year  to 
year,  to  exist  in  favor  of  a  bona  fide  purchaser  for  a  valuable 
consideration,  still  with  what  propriety  could  the  counsel  ask  the 
Court  to  assume  the  fact,  contrary  as  I  conceive,  to  the  testimony 
of  the  witnesses  on  both  sides,  that  Krider  was  such  a  purchaser ; 
and  to  instruct  the  jury  that  the  title  of  Lafferty  must,  therefore, 
give  way  to  him.  This,  had  the  Court  done  so,  would  not  only 
in  effect  have  been  a  withdrawal  of  the  decision  of  a  matter  of 
fact  from  the  jury,  but  would  have  been  a  decision  of  it  by  the 
Court,  contrary  to  a  body  of  evidence,  which  went  to  prove  very 
clearly,  that  the  fact  was  otherwise.  Though  Lafferty  had  never 
put  his  deed  on  record,  yet  it  appears  from  the  testimony  of  the 


318  SUPREME  COURT  [Dec.  Term, 

(Krider  v.  Lafferty.) 

witnesses  of  both  parties,  that  he  had  been  in  the  actual  posses- 
sion and  enjoyment  of  the  acre  of  land  from  the  year  1816  to 
the  time  of  the  trial,  and  of  course  was  in  the  actual  possession 
thereof,  at  the  time  Krider  became  the  purchaser.  When  Laf- 
ferty bought,  it  was  meadow,  and  part  of  a  larger  tract  of  land, 
owned  by  John  Lentz  at  the  time.  Lafferty,  it  seems,  was  a 
basket-maker;  and  immediately  after  his  purchase,  the  ground 
being  set  apart  from  that  owned  by  Lentz,  he  took  possession  of 
it,  planted  it  with  willows,  for  the  purpose  of  supplying  himself 
with  materials  to  carry  on  the  business  of  his  trade,  and  continued 
to  occupy  it,  growing  willows  upon  it,  and  cutting  them  every 
year  at  the  proper  season.  This  visible  change  in  the  appear- 
ance and  occupation  of  the  ground  could  not  well  fail  to  attract 
the  notice  of  the  neighborhood ;  and  hence  it  would  seem,  that 
all  the  witnesses  who  had  resided  within  the  same,  for  any  length 
of  time,  had  become  acquainted  with  Lafferty's  occupation  of  the 
ground.  His  possession  then  being,  sufficiently  distinct  to  be 
notorious,  was  sufficient  to  put  Krider  upon  his  inquiry,  as  to 
the  right,  under  which  Laffe/ty  held  the  possession  of  the  land ; 
and  being  sufficient  for  that  purpose*  was  good  notice  in  equity.* 
Smith  v.  Lowe,  1  Atk.  490  ;  Sug.  Vend.  743.  This  case,  as 
presented  by  the  evidence,  is  not  like  the  case  of  Billington  v. 
Welsh,  (5  Binn.  129,)  to  which  it  has  been  compared  by  the 
counsel  for  the  plaintiffs  in  error.  Welsh  had  never  had  the  fifty 
acres  °f  land?  which  he  alleged  he  bought  of  *Turner, 
laid  off  by  survey,  or  separated  in  any  way  from  the 
residue  of  Turner's  land.  Turner  had  erected  iron-works  on  his 
part  of  the  land,  and  various  dwelling-houses  and  other  buildings 
for  the  accommodation  of  the  persons  in  his  employ,  and  for 
carrying  on  his  business :  with  which  the  buildings  and  improve- 
ments of  Welsh,  to  the  eye  of  the  spectator,  were  apparently 
connected,  and  seemingly  formed  a  part  thereof;  so  that  there 
was  no  distinct  unequivocal  possession  of  the  land  by  Welsh,  as 
there  has  been  here  by  Lafferty.  Under  such  circumstances  it 
is  obvious,  that  it  would  have  been  erroneous  on  the  part  of  the 
Court,  and  have  been  doing  great  injustice  to  Lafferty,  to  instruct 
the  jury  as  requested  by  the  counsel  for  the  plaintiffs  in  error. 
They  might  have  made  a  question  as  to  what  would  amount  to 
notice  to  Krider,  of  the  right  of  Lafferty  to  tjie  land ;  and  whether 
such  facts  and  circumstances  had  been  proved  as  were  equivalent 
to  it ;  but  it  "would  seem  as  if  they  were  unwilling  to  encounter 
it;  and  wished  to  have  it  assumed  as  being  in  favor  of  their 
clients.  The  charge  of  the  Court  then,  in  regard  to  the  nature 
and  effect  of  the  deed,  though  erroneous,  yet  being  more  favora- 

*5  Watts  &  Sergeant,  429  ;  2  Harris,  116. 


1835.]  OF  PENNSYLVANIA.  319 

(Krider  v.  Lafferty.) 

ble  to  the  plaintiffs  in  error,  as  we  conceive,  than  their  counsel 
had  any  right  to  claim,  does  not  furnish  a  sufficient  ground  for 
reversing  the  judgment. 

As  Lafferty  acquired  a  fee  simple  estate  in  the  acre  of  land,  on 
which  the  trespass  is  alleged  to  have  been  committed,  by  the  deed 
from  Lentz  to  him,  the  questions  embraced  in  the  3d  and  4th 
points  submitted  by  the  counsel  for  the  plaintiffs  in  error,  to  the 
Court  below,  were  not  material  to  the  issue,  and,  therefore,  require 
no  further  notice. 

In  regard  to  the  5th  point ;  we  think  there  was  no  ground  what- 
ever for  asking  the  Court  to  instruct  the  jury,  as  was  done  by  it, 
that  in  case  they  found  for  the  plaintiff  below,  the  damages  ought 
to  be  merely  nominal;  as  the  trespass  committed,  if  any,  was 
unintentional.  Krider,  one  of  the  plaintiffs  in  error,  under  whose 
authority  the  others  acted,  being  notified  expressly  by  Lafferty  of 
his  right  to  the  land  and  the  willows,  persisted  in  going  on  with 
the  trespass  and  taking  the  willows  away,  after  they  were  cut,  in 
place  of  tendering  amends  for  the  injury  done.  It  was  certainly 
not  an  unintentional  trespass,  but  one  of  design,  committed  under 
the  color  of  right,  which  has  been  attempted  to  be  vindicated 
throughout:  Lafferty,  besides  the  loss  of  his  property,  must  have 
been  put  to  considerable  expense  in  asserting  and  establishing  his 
right :  and  I  am,  therefore,  not  satisfied,. but  it  Avas  a  proper  case 
enough,  to  be  left  by  the  Court  to  the  jury,  to  decide  whether 
damages  beyond  the  value  of  the  willows  taken,  and  the  injury 
done,  if  any,  to  the  freehold,  ought  not  to  be  given:  nominal  dam- 
ages, merely,  were  out  of  the  question ;  for  it  would  have  been 
error  as  it  appears  to  me,  in  the  Court,  to  have  suggested  less 
than  compensatory. 

In  regard  to  the  sixth  point;  Lafferty  being  held  to  be  the 
owner  *of  the  land,  on  which  the  willows  grew  and  were 
cut ;  and  being  in  the  actual  possession  of  it,  there  can 
be  no  question,  but  he  had  a  right  to  allege  in  his  declaration,  in 
addition  to  the  breaking  and  entering  of  his  close,  the  cutting, 
taking  and  carrying  away  of  the  willows  there  found  growing ;  and 
having  alleged  it,  it  was  competent  for  him  to  prove  it,  if  he  could ; 
and  if  he  proved  it,  he  was  entitled  to  recover  damages,  equal  to 
the  full  value  of  the  willows  at  least,  as  well  as  for  the  injury  done 
to  the  freehold ;  hence  the  Court  committed  no  error  in  their  an- 
swer to  this  point,  that  could  injure  the  plaintiffs  in  error. 

The  judgment  is  affirmed. 

Cited  by  Counsel,  post  423  ;  2  Wharton,  108 ;  3  Id.  410 ;  5  Id.  106 ;  2 
Watts  &  Sergeant,  113,  311 ;  4  Id.  18  ;  6  Id.  470;  7  Id.  45 ;  8  Id.  68,  93. 
260 ;  1  Barr.  209  ;  1  Harris,  47 ;  11  Id.  128  ;  10  Casey,  448 ;  2  Wright,  77  ; 
3  Wright,  481 ;  5  P.  F.  Smith,  511. 

Cited  by  the  Court,  7  Watts,  272  ;  5  P.  F.  Smith,  375. 

Cited  by  Kennedy,  J.,  4  Wharton,  275. 


320  SUPREME  COURT.  [Dec.  Term, 

[PHILADELPHIA,  FEBRUARY  6,  1836.] 
CAMMANN  against  HIND. 

Affidavits  to  hold  bail  made  by  the  plaintiff  (residing  in  New  York,)  and 
his  clerk  in  Philadelphia,  which  set  forth  that  the  defendant  was  indebted 
to  the  plaintiff  in  a  certain  sum,  "part  of  which"  was  for  money  lent 
and  advanced  by  the  plaintiff  to  the  defendant,  and  "the  rest  of  the  prin- 
cipal siim"  was  due  "for  the  balance  which  the  defendant  owes  the 
plaintiff  on  settlement,  in  transactions  in  which  the  plaintiff,  by  the  de- 
fendant's request,  and  as  his  agent,  made  purchases  and  sales  for  the 
defendant,  but  in  the  plaintiff's  name,  by  which  he  stands  indebted  to 
third  persons,  and  the  defendant  is  indebted  to  him  in  the  said  sum  ;  the 
precise  amount  and  extent  of  which  balance  cannot  be  stated  now,  be- 
cause the  defendant  suddenly  left  New  York,  without  coming  to  any 
settlement,  &c.,"  and  that  the  defendant,  on  being  required  to  pay,  did 
not  deny  the  debt  or  the  amount :  held  to  be  sufficient. 

AN  action  on  the  case  was  brought  by  Frederick  W.  Cammann 
against  Edward  Hind,  to  March  Term,  1836,  of  this  Court,  and 
bail  demanded  in  $30,000. 

A  rule  to  show  cause  of  action,  and  why  the  defendant  should 
not  be  discharged  on  common  bail,  having  been  obtained,  returna- 
ble this  day ;  the  following  affidavits  were  now  produced  on  the 
part  of  the  plaintiff: 

"City  and  County  of  New  York,  ss. 

Frederick  W.  Cammann  being  duly  sworn,  saith  that  Edward 
Hind  of  the  United  Kingdom  of  Great  Britain  and  Ireland,  is 
r*f-?2n  justly  *and  truly  indebted  to  deponent,  for  money  paid, 
J  laid  out,  and  expended  for  the  use  of  said  Hind,  and 
for  services,  and  stock  in  incorporated  companies,  actually  trans- 
ferred at  the  instance  and  request  of  said  Hind,  in  the  sum  of 
thirty  thousand  dollars  or  thereabouts,  as  this  deponent  has  not 
been  able  at  this  time  to  ascertain  the  amount  of  such  indebted- 
ness within  a  dollar,  but  that  the  same  is  very  near  such  amount 
over  or  under. 

FRED.  W.  CAMMANN." 


*•  Henry  Meigs  of  the  City  of  New  York,  attorney  in  fact  of 
Frederick  W.  Cammann,  plaintiff  above-named,  on  oath  declares, 
that  Edward  Hind,  defendant,  held  to  bail  in  this  action,  is  justly 
and  truly  indebted  to  said  plaintiff,  in  the  sum  of  twenty-five 
thousand  dollars  and  upwards,  without  reckoning  interest ;  part 
of  which  sum  is  due  for  money  lent  and  advanced  by  the  said 
plaintiff  to  the  said  defendant  at  his  request,  and  the  rest  of  the 
said  principal  sum  is  due  for  the  balance  which  the  said  defendant 
owes  the  said  plaintiff  on  settlement  of  accounts,  in  transactions, 
in  which  the  plaintiff,  by  the  defendant's  request  and  as  his  agent. 


1835.]  OF  PENNSYLVANIA.  321 

(Cammann  v .  Hind. ) 

made  purchases  and  sales  for  the  defendant,  but  in  the  plaintiff's 
name,  by  which  he  stands  indebted  to  third  persons,  and  the  de- 
fendant is  indebted  to  him  in  the  said  sum,  the  precise  amount 
and  extent  of  which  balance  cannot  be  stated  now,  because  the 
defendant  a  few  days  ago  suddenly  left  the  city  of  New  York, 
where  he  was  a  resident,  without  coming  to  any  settlement  with 
the  plaintiff.  Deponent  being  a  clerk  in  plaintiff's  counting  house, 
was  therefore  dispatched  by  him  to  follow  defendant  to  Philadel- 
phia with  power  of  an  attorney  to  bring  him  to  a  settlement. 
While  in  plaintiff's  counting  house,  deponent  was  privy  to  the 
transactions  and  dealings  between  plaintiff  and  defendant,  and  the 
latter' s  indebtedness  to  the  former,  as  aforesaid,  is  within  depo- 
nent's personal  and  actual  knowledge.  On  his  arrival  in  Phila- 
delphia, deponent  waited  on  defendant,  and  required  him  to  pay 
from  fifteen  to  twenty  thousand  dollars,  on  account  of  what  de- 
fendant owes  plaintiff.  Defendant  did  not  deny  the  debt  or  the 
amount,  but  said  that  he  had  not  the  means  of  paying  it ;  where- 
upon, deponent  caused  him  to  be  held  to  bail  in  this  action.  De- 
ponent further  adds,  that  defendant  is  a  foreigner,  not  a  citizen  of 
the  United  States,  nor  likely  to  remain  in  this  country,  now  tran- 
siently in  Philadelphia,  having  suddenly  left  New  York  as  afore- 
said, where  he  has  resided  about  two  years  last  past ;  that,  as  de- 
ponent understands  and  believes,  defendant  has  credit  for  consider- 
able means  in  England,  where"  he  comes  from ;  that  if  held  to  bail 
in  this  action  there  is  a  probability,  but  if  not  held  to  bail  in  it, 
there  is  no  probability  of  plaintiff's  recovering  the  debt  due  to 
him,  by  the  defendant  as  aforesaid. 

H.  MEIGS,  Jim." 

*Mr.  BrasJiears  for  the  defendant,  objected  that  these  r*  099-1 
affidavits  did  not  bring  the  case  within  the  5th  section  of  •- 
the  4th  Rule  of  this  Court,  which  requires  "  a  positive  affidavit 
of  a  real  subsisting  debt."  The  plaintiff  declares  in  his  affidavit 
that  he  has  not  been  able  to  ascertain  the  exact  amount  of  the 
indebtedness,  nor  does  he  distinguish,  as  he  ought  to  have  done, 
between  his  claim  for  money  paid,  &c.,  and  that  arising  from 
stock  transactions.  The  latter  are  too  vaguely  stated  in  both  affi- 
davits to  authorize  a  holding  to  bail.  The  liabilities  to  third  per- 
sons mentioned  in  the  affidavit  of  the  clerk,  ought  to  have  been 
particularly  set  forth  ;  besides,  the  affidavits  are  in  a  measure 
contradictory,  since  the  first  speaks  of  services  rendered,  and  the 
last  confines  the  claim  to  money  lent  and  advanced,  and  liabilities 
to  third  persons  for  purchases  and  sales  of  stock. 

But,  by  THE  COURT,  (without  hearing  Mr.  O.  J.  Ingersoll,  for 
the  plaintiff.)     These  affidavits  taken  together  make  out  a  suffi- 


322  SUPREME  COURT  [Dec.  Term, 

(Kirkham  c.  Sharp.) 

cient  case,  to  justify  us  in  refusing  bail.  It  is  not  necessary  to 
spread  out  the  particulars  of  the  indebtedness,  in  an  action  like 
the  present.  Besides,  it  appears  that  the  defendant  has  acknowl- 
edged himself  to  be  indebted  to  the  plaintiff  in  a  sum,  which 
authorizes  the  bail  demanded. 

Rule  discharged. 


[*323]  *KIRKHAM  against  SHARP.* 

CASE  STATEDv 

The  owner  of  a  large  lot  of  ground  situate  on  the  east  side  of  Fourth  street, 
in  the  City  of  Philadelphia,  granted  to  A.  in  fee  a  part  of  the  same,  being 
a  lot  25  feet  in  front,  and  in  depth  about  100  feet ;  bounded  east  by  a 
brick  stable,  standing  in  the  line  of  the  lot ;  "together  with  the  full  and 
free  privilege  and  authority  of  ingress,  egress,  and  regress,  by,  through, 
and  upon  a  4  feet  6  inches  alley,  extending  in  and  about  45  feet  from 
4th  street,  to  be  forever  left  open  between  the  lot  hereby  granted,  and 
the  house  now  occupied  by  B.,"  reserving  a  perpetual  ground  rent,  with 
a  covenant  by  A.  to  pay  the  same,  and  to  build  within  a  limited  time  a 
good  three  story  brick  house  upon  the  lot  thus  granted  to  him.  A. 
erected  a  house  with  back  buildings,  extending  to  the  eastern  boundary 
of  the  lot.  Several  years  afterwards,  C.  purchased  the  whole  of  the 
large  lot  with  the  buildings  on  it,  includingthat  occupied  by  B .,  but  ex- 
cepting the  house  and  lot  belonging  to  A.  The  deed  to  C.  described  A.'s 
lot  as  being  one  of  the  boundaries,  and  contained  the  following  clause, 
"Subject  to  the  full  and  free  privilege  and  authority  of  ingress,  egress, 
and  regress,  granted  by,  &c.  (reciting  the  deed  to  A.)  by,  through,  and 
upon  a  4  feet  6  inches  alley  along  side  of  the  north  line  of  (A  7s)  lot, 
and  extending  in  and  about  45  feet  from  Fourth  st.  to  be  forever  left 
open  between  (A.'s)  said  lot  and  the  house  included  in  this  grant,  for- 
merly occupied  by  B."  &c.  There  was  an  alley  leading  into  Market 
street,  and  another  passage  into  Fourth  street,  communicating  with  the 
stable  yard.  Held,  that  C .  had  no  right  to  continue  the  4  feet  6  inches 
alley  to  the  stable  wall,  and  thence  pass  from  the  stable  into  Fourth 
street,  along  the  alley  on  the  north  side  of  A.'s  house. 

THIS  was  an  action  on  the  case  brought  in  this  Court  by  Wil- 
liam Kirkham  against  John  Sharp,  junior. 

•     By  agreement  the  following  case  was  stated  for  the  opinion  and 
judgment  of  the  Court. 

"By  indenture,  bearing  date  the  20th  day  of  April,  1767, 
Anthony  Morris  and  wife  granted  and  conveyed  to  John  Litle 
and  his  heirs,  a  large  lot  of  ground  on  the  east  side  of  Fourth 
street,  between  Market  and  Chestnut  street,  in  the  city  of  Phila- 

*For  the  report  of  this  case,  which  was  decided  in  1832,  I  am  indebted 
to  the  kindness  of  John  Cadwalader,  Esq. — REP. 


1835.]  OF  PENNSYLVANIA.  323 

(Kirkham  «.  Sharp.) 

delphia,  with  the  easements  and  appurtenances  therein  mentioned. 
In  this  deed  the  lot  was  thus  described : 

"Beginning  at  Fourth  street,  at  south  corner  of  C.  Brockden's 
lot,  (1),  E.  along  Brockden's  lot  104  feet,  to  the  extent  thereof, 
(2),  N.  along  back  end  thereof  34  feet  4  inches,  (3),  E.  along 
end  of  lot  formerly  of  said  A.  Morris,  now  Adam  Eckart,  to  a  3 
feet  alley  leading  into  Market  street,  (4),  S.  along  said  alley  26 1 
feet,  to  the  end  thereof,  (5),  E.  3  feet  to  lot  of  Francis  Allison, 
now  Charles  Thomson,  *(6),  along  said  lot  S.  179  feet  r*QO4l 
4  inches,  to  lot  of  John  Martin  (7),  W.  along  Martin's 
lot  125  feet  8J  inches,  to  Fourth  street,  (8).  N.  along  Fourth 
street  171  feet  6  inches,  to  beginning.  Together  with  the  use  of 
the  said  3  feet  alley,  leading  into  Market  street." 

DRAUGHT   ANNEXED   TO   THE   DEED. 

Fourth  street. 


Martin.  3.  7%  inches  purchased  b; 
Eastburn  of  Anthony  Morris. 

126  feet  8%  inches. 

171  feet  6  inches 

Anthony  Morris  sold  to 
John  Litle 

•goqoui  ^  !)aoj  gjj                    i 

1 

100  feet  to  Market  street. 

34.4 

CO 

3  feet  alley. 

Francis  Allison, 

now  in  the  tenure  of  Charles  Thomson. 

By  indenture,  bearing  date  the  4th  day  of  February,  1792, 
the  said  Litle  and  wife  granted  and  conveyed  to  Robert  Smock 
and  his  heirs,  a  part  of  the  said  large  lot,  with  the  easements  and 
appurtenances  therein  mentioned. 

Viz. — "  A  lot  on  the  east  side  Fourth  street,  between  High 
and  Chestnut  streets,  containing  in  front  on  Fourth  street  25  feet, 
and  in  depth  about  100  feet  more  or  less.  Bounded  east  by  a 
brick  stable  standing  in  line  of  the  lot,  south  by  Litle's  other 
ground,  west  by  Fourth  street,  and  north  by  ground  now  or  late 
of  Litle. 

"  Together  also  with  the  full  and  free  privilege  and  authority 
of  ingress,  egress,  and  regress,  by,  through,  and  upon,  a  four 
feet  and  six  inches  alley,  extending  in  and  about  forty-five  feet 
from  Fourth  street,  to  be  forever  left  open  between  the  lot  hereby 
granted,  and  the  house  now  occupied  by  Miss  Clinton;  also, 


324  SUPREME  COURT  [Dec.  Term, 

(Kirkbam  e.  Sharp.) 

with  tit  e  full  and  free  privilege  of  the  use  of  the  pump  of  water 
being  in  the  yard  of  the  aforesaid  house,  and  about  on  the  line 
between  the  two  lots"  Reserving  a  ground  rent,  with  a  covenant 
of  grantee  to  pay  the  rent,  and  within  five  years  to  build  on  the 
lot  a  good  three-story  brick  house. 

The  premises  thereby  granted  and  conveyed  to  Smock,  and  the 
easements  and  appurtenances  then  or  since  belonging  to  them,  are 
uow  the  property  of  the  plaintiff,  who  holds  them  under  Smock 
r*32'T  ^7  a  *  chain  of  conveyances.  In  the  year  1793, 
Smock  erected  upon  the  last  mentioned  premises,  the 
three-story  brick  dwelling,  No.  7,  South  Fourth  street,  with  two 
story  brick  back-buildings,  running  eastward.  These  back  build- 
ings, extend  to  and  adjoin  the  wall  of  the  stable  mentioned  in  the 
deed  to  Smock.  From  the  time  of  the  erection  of  the  house  No. 
7,  until  now,  it  has  always  been  inhabited. 

The  said  John  Litle  remained  the  owner  and  in  possession  of 
all  the  remainder  of  the  premises  granted  and  conveyed  to  him  by 
Anthony  Morris  and  wife,  until  the  time  of  his  death. 

On  the  21st  day  of  December,  1827,  by  indenture  bearing  date 
that  day,  James  Ross,  administrator  with  the  will  annexed  of  the 
said  John  Litle  did  grant  and  convey  to  John  Sharp,  the  defend- 
ant, and  John  W.  Downing,  all  the  premises  granted  and  con- 
veyed by  the  said  Anthony  Morris  and  wife  to  the  said  John 
Litle,  except  that  part  conveyed  to  Smock  in  1792,  in  the  man- 
ner therein  expressed.  This  conveyance  was  accepted  by  the  de- 
fendant and  Downing. 

This  deed  reciting  that  Litle  had  died  seised  of  the  Indian 
Queen  Hotel  and  messuages,  and  the  lot  thereto  belonging, 
having  first  made  his  will,  &c.,  directing  his  executors  after  his 
widow's  death,  to  sell  his  real  estate — that  she  and  all  the  execu- 
tors are  dead,  and  the  grantor  administrator  cum  testamento  an- 
nexo,  pursuant  to  act  of  12th  March,  1800,  conveys  the  prem- 
ises according  to  the  description  in  the  deed  of  1767,  from 
Morris  to  Litle,  to  the  end  of  the  fifth  course  and  distance,  then 
proceeds  with  the  description  as  follows  "(6)  along  said  lot  south 
179  feet  4  inches  to  a  lot  formerly  of  John  Martin,  now  of  said 
John  Sharp,  Junior,  (7}  west  along  same  50  feet  8|  inches  to  a 
strip  3  feet  wide,  conveyed  by  Litle  on  4th  February,  1768,  to 
John  Martin,  (8)  north,  by  east  end  of  that  strip  3  feet,  (9)  west, 
along  north  line  of  that  strip,75  feet  to  Fourth  street  (10)  north 
by  Fourth'  street  116  feet  6  inches  to  "  South  line  of  a  Jot  25  feet 
wide,  which  the  said  John  Litle,  by  deed  dated  the  4f/t  day  of 
February,  A.  D.  1792,  sold  and  conveyed  to  one  Robert  Smock, 
now  belonging  to  William  Kirkham,  thence  eastwardly  by  the 
south  line  of  Kirkham1  s  said  lot  about  100  feet,  more  or  less,  to  a 
brick  stable  included  in  this  grant."  (12)  north  by  rear  end  of 


1835.]  OF  PENNSYLVANIA.  325 

(Kirkham  t>.  Sharp. ) 

Kirkham's  lot,  25  feet,  (13)  west,  by  north  line  of  Kirkham's 
lot,  about  100  feet,  to  Fourth  street,  (14)  north,  along  east  line 
of  Fourth  street,  and  bounding  thereon  about  25  feet  6  inches 
more  or  less,  to  beginning,  subject  to  the  full  and  free  privilege 
and  authority  of  ingress,  egress  and  regress,  granted  by  the  said 
John  Litle,  by  the  deed  aforesaid,  to  the  said  Robert  Smock,  his 
heirs  and  assigns,by,  through  and  upon  a  4  feet  6  inches  alley, 
along  side  of  the  north  line  of  Kirkham' s  said  lot,  and  extending 
in  and  about  45  feet  from  Fourth  street,  to  be  forever  left  open 
between  Kirkhani*  s  said  lot  and  the  house  included  in  this  grant, 
formerly  occupied  by  Miss  Clinton,  and  now  occupied  by  Mrs. 
Weeks,  and  also  subject  to  *thefull  and  free  privilege  r*vc)G  \ 
in  the  owners  of  Kirkham'' s  said  lot,  of  the  use  of  the  L  ""  J 
pump  of  water  being  in  the  yard  of  the  last  mentioned  house, 
and  about  on  a  line  between  the  two  lots,  and  also  granted  by  the 
said  John  Litle  to  the  said  Robert  Smock,  Ms  heirs  and  assigns, 
by  the  deed  aforesaid"  This  deed  also  recited,  that  the  premises 
thereby  granted  and  the  strip  sold  by  Litle  to  Martin,  and  the  25 
feet  lot  sold  by  Litle  to  Smock,  were  the  entire  lot  which  Morris 
and  wife  conveyed  to  Litle,  and  conveyed  the  same,  "together 
with  the  full  and  free  privilege  and  authority  of  ingress,  egress 
and  regress  by,  through  and  upon  the  aforesaid  3  feet  wide  alley, 
leading  into  High  or  Market  street  aforesaid."  Habendum  to 
grantees  in  common,  in  fee,  in  equal  parts,  subject  to  a  paramount 
ground-rent,  and  "to  all  the  covenants  made  by  the  said  John 
Litle  to  the  said  Robert  Smock,"  in  the  deed  of  4th  February, 
1792. 

The  premises  granted  and  conveyed  by  James  Ross  to  the  de- 
fendant and  John  W.  Downing,  were  at  the  time  of  the  convey- 
ance from  John  Litle  and  wife,  to  Robert  Smock,  in  the  year 
1792,  used  and  occupied  as  follows,  to  wit: 

On  that  part  of  the  said  premises  which  lie  north  of  the  lot  of 
the  plaintiff'  there  was  then  erected  a  three  story  brick  house  on 
the  front  of  the  lot  adjoining  Fourth  street,  being  the  house  No. 
5,  south  Fourth  street,  and  in  the  rear  of  this  house  there  were 
then  erected  back  buildings  which  extended  eastward  to  the  said 
stable  wall.  The  back  buildings  faced  the  back  buildings  of  the 
plaintiff.  This  house,  No.  5,  is  the  same  which  is  mentioned  in 
the  deed  to  Smock  as  being  then  occupied  by  Miss  Clinton.  It 
has  been  occupied  ever  since  as  a  dwelling  house. 

That  part  of  the  premises  Avhich  lies  east  of  the  lot  occupied 
formerly  by  Miss  Clinton,  and  east  and  south  of  the  plaintiff's 
lot,  was  occupied  as  the  Indian  Queen  tavern  and  its  stables  and 
appurtenances.  The  Indian  Queen  tavern  stands,  and  did  in 
1792  stand  on  the  south-western  extremity  of  the  lot  granted 
and  conveyed  by  Morris  and  wife  to  Litle  ;  there  was  a  dwelling 
VOL.  i. —22 


326  SUPREME  COURT  [Dec.  Term, 

(Kirkham  c.  Sharp.) 

house  adjoining  the  tavern  on  the  north ;  an  archway,  sufficiently 
large  to  admit  carriages,  was  taken  from  the  southern  side  of  this 
last  house  and  adjoining  the  said  tavern,  which  archway  led  into 
the  yard  and  to  the  stables  of  the  said  tavern  and  back  of  said 
stables  to  a  vacant  part  of  said  larger  lot  used  as  a  stable  yard,  of 
which  this  archway  formed  an  outlet.  The  space  of—  —  feet  on 
Fourth  street  adjoining  the  plaintiff's  house  and  lot  on  the  south 
was  vacant  and  not  built  on  till  the  year—  — .  The  other  ground 
fronting  on  Fourth  street  was  all  built  on  at  the  date  of  the  con- 
veyance from  Litle  and  wife  to  Smock.  From  the  vacant  part  of 
the  said  larger  lot  back  of  the  said  stables  there  was  an  alley 
leading  northwardly  into  Market  street,  which  is  still  open,  and  is 
the  same  alley  mentioned  in  the  conveyance  from  Morris  to 
Litle.  The  western  wall  of  the  stable  beginning  at  about  a 
*f°°t'  northward  of  the  north-east  corner  of  the  lot  for- 
merly  occupied  by  Miss  Clinton  and  running  parallel  to 
and  about  one  hundred  feet  distant  from  Fourth  street,  extends 
southerly  more  than  one  hundred  feet.  From  before  the  convey- 
ance to  Smock  in  1792,  until  the  autumn  of  1828,  there  never 
was  any  door,  window,  light,  or  other  opening  of  any  sort  in  that 
part  of  the  said  wall  which  bounds  the  said  premises  No.  5,  and 
No.  7.  The  wall  prevented  all  access  from  that  quarter  to  the 
premises  of  the  plaintiff,  or  the  premises  occupied  as  aforesaid,  by 
Miss  Clinton.  During  this  period,  the  only  means  of  approach  to 
either  of  these  premises,  was  from  the  side  of  Fourth  street. 

From  the  conveyance  to  Smock  in  1792,  until  the  autumn  of 
1828,  the  alley  leading  into  Fourth  street,  four  and  a  half  feet 
wide,  by  forty-five  feet  deep,  mentioned  in  that  conveyance,  was 
always  used  uninterruptedly  by  the  owners  and  occupiers  of  the 
said  houses,  No.  7,  and  No.  5,  South  Fourth  street,  for  the  pur- 
poses of  those  two  houses  respectively,  and  of  the  families  inhab- 
iting the  same,  as  a  footway,  and  for  no  other  purpose,  and  during 
the  whole  of  that  period,  was  never  used  by  any  other  person  for 
any  purpose.  At  the  eastern  end  of  the  main  building  of  each 
house,  was  a  private  gate  leading  into  the  alley.  The  alley  ex- 
tended no  further  back  eastward  than  these  gates,  where  it  AV  as 
stopt  up  by  the  fence  of  the  said  lot  formerly  occupied  by  Miss 
Clinton,  which  fence  ran  across  the  head  of  the  alley  four  and  a 
half  feet,  to  the  fence  of  the  lot  of  No.  7,  at  the  distance  of  about 
forty-five  feet  from  Fourth  street,  and  thence,  the  two  fences 
being  there  united,  and  forming  one  division  fence  from  the  junc- 
tion, ran  eastwardly  about  fifty-five  feet  to  the  western  wall  of  the 
said  stable. 

On  and  since  the  1st  day  of  October,  1828,  the  defendant  has 
passed  on  foot,  in,  upon,  over  and  across  the  said  alley,  four  and 
a  half  feet  wide  by  forty-five  feet,  backward  and  forward  to  and 


1835.]  OF  PENNSYLVANIA.  327 

(Kirkham  v.  Sharp.) 

from  that  part  of  the  premises  granted  by  Morris  and  wife  to 
Litle,  which  lies  easterly  from  the  said  stable  wall,  without  the 
leave  of  the  plaintiff,  and  has  also  passed  with  a  horse,  leading 
the  said  horse  in,  upon,  over  and  across  the  same  alley  backward 
and  forward,  to  and  from  that  part  of  the  said  premises  which  lie 
east  of  the  said  stable  wall,  without  leave  of  the  plaintiff. 

To  enable  himself  thus  to  pass  to  and  from  said  part  of  the 
premises  which  lie  east  of  said  stable  wall,  he  lengthened  the  said 
alley  four  and  a  half  feet  wide  by  forty-five  feet,  by  removing 
that  part  of  the  fence  of  the  lot  formerly  occupied  by  Miss  Clin- 
ton, which  had  previously  stopped  the  alley  on  the  eastward,  and 
extending  the  fence  from  the  gate  of  the  lot  formerly  occupied 
by  Miss  Clinton,  on  the  ground  which  was  granted  to  defendant 
and  John  W.  Downing,  by  James  Ross  aforesaid,  parallel  to,  and 
four  and  a  half  feet  equidistant  from  the  former  division  fence, 
to  said  stable,  then  *breaking  a  passage  through  the  sta-  r*ooQ-i 
ble  Avail,  and  making  the  same  with  the  alley  extended  L 
as  aforesaid,  form  one  continuous  passage  and  thoroughfare  be- 
tween Fourth  street  and  that  part  of  the  premises  granted  by 
Morris  to  Litle,  which  lies  east  of  the  stable  wall  aforesaid,  thus 
enabling  himself,  the  said  defendant,  his  heirs  and  assigns,  owners 
and  occupants  of  the  said  larger  lot,  and  of  that  part  of  the  said 
premises  which  lies  east  of  the  said  stable  wall,  to  use  the  said 
alley  as  aforesaid,  without  the  plaintiff's  leave  obtained  in  that 
behalf. 

It  is  agreed  that  the  several  deeds  and  writings  aforesaid,  be 
in  evidence,  and  that  from  the  same  and  from  the  facts  before 
stated,  the  court  may  infer  such  matters  and  things,  as,  in  their 
judgment,  a  jury  ought  to  infer  from  the  said  deeds,  writings  and 
facts. 

The  question  submitted  to  the  Court  is,  whether  in  point  of 
law  the  defendant  has,  by  reason  of  the  premises,  interfered  with 
or  obstructed  the  said  alley,  or  the  use  or  enjoyment  thereof,  by 
the  plaintiff,  as  the  plaintiff  was  entitled  to  use  and  enjoy  the 
same.  If  the  Court  should  be  of  opinion  that  the  defendant  had 
the  right  to  use  the  said  alley  leading  into  Fourth  street,  to  pass 
either  on  foot,  or  with  a  horse  or  horses,  over  the  same,  to  and 
from  that  part  of  the  premises  granted  and  conveyed  by  Morris 
and  wife  to  Litle,  which  lies  east  of  the  said  stable  wall,  then 
judgment  is  to  be  entered  for  the  'plaintiff  generally.  If  the 
Court  shall  be  of  opinion  that  the  defendant  had  a  right  thus  to 
pass  on  foot,  but  not  to  lead  a  horse  over  the  same,  then  a  special 
judgment  is  to  be  entered  for  the  plaintiff  accordingly.  If  the 
Court  shall  be  of  opinion  that  the  defendant  had  a  right  thus  to 
pass  either  on  foot  or  with  horses,  at  his  pleasure,  then  judgment 
is  to  be  entered  for  the  defendant. 


SUPREME  COURT 


[Dec.  Term, 


(Eirkham  t.  Sharp.) 

If  judgment  should  be  entered  in  favor  of  the  plaintiff,  he  is 
to  be  at  liberty  to  bring  a  new  action  for  any  damages  he  may 
have  sustained  in  consequence  of  any  interference  with,  or  ob- 
struction of  the  use  of  the  said  alley  by  the  defendant,  since  the 
19th  of  March,  1830 ;  it  being  agreed  and  understood,  that  the 
present  action  and  case  stated,  are  to  have  the  same  effect  as  if 
the  same  had  been  commenced  by  an  agreement  like  the  present, 
filed  on  that  day. 

*  'J'hcfoNowing  Diagram  exhibits  the  situation  of  the 
alley  and  the  adjoining  ground : — 


Market  street. 


t 

~ 

_  —  

•< 

•i 

_ 

House  and  lot  formerly  of  Miss  Clinton. 

K 

Alley  46  feet  deep  |    

v> 

r» 

House  and  lot  of  Kirkham. 

i  . 

*  p 

- 

^     o- 

- 

£    5" 

J 

— 

- 

sg 

5   a 

2  P 

r  a 

The  dotted  line  shows  the  continuation  of  the  alley. 


The  case  was  argued  on  the  10th  and  llth  February,  1832, 
by  Mr.  Cadwalader,  and  Mr.  Chauncey,  for  the  plaintiff ;  and 
by  Mr.  J.  M.  Head,  and  Mr.  Bouvier,  for  the  defendant. 

Arguments  for  the  plaintiff ' : — 

A  right  of  way  or  other  incorporeal  right  exercisable  in  lands, 
is  a  species  of  property  wholly  independent  of  the  soil  or  land  in 
which  it  is  exercisable,  and  of  the  ownership  of  such  soil.  It  may 
be  enjoyed  to  the  entire  exclusion,  and  therefore  d  fortiori,  to  the 
partial  exclusion  of  the  owner  of  the  soil.  This  is  true,  whether 
the  exclusion  arises  from  grant  or  from  prescription.  Its  capa- 
city to  arise  from  prescription,  is  a  proof  that  there  would  be 
nothing  unreasonable  in  construing  a  grant  as  implicative  of  an 
intention  to  exclude  the  owner  of  the  soil  from  the  benefit  of  the 
right  granted.  Co.  Lit.  122,  (a,)  and  Hargr.  note  6  &  7  of  this 
folio ;  2  Rol.  Abr.  267,  Prescription  L. ;  Hawks  v.  Molyneux, 


1835.]  OF  PENNSYLVANIA.  329 

(Kirkham  v.  Sharp.) 

(1  Leon.  73  ;)  Potter  v.  North,  (1  Levinz,  268  ;)  Hopkins  v. 
Robins,  (Pollexf.  13  ;)  G-ri*ell  v.  Leigh,  (Sir  W.  Jones,  12.)  The 
owner  of  the  way,  and  the  owner  of  the  soil  having  each  an  abso- 
lute property,  the  one  in  the  way,  the  other  in  the  soil  subject  to 
the  way  ;  each  is  entitled  to  use  what  is  thus  his  own.  But  the 
right  of  each  is  subject  to  the  restriction  implied  in  the  maxim, 
sic  utere  tuo  ut  alienum  non  Icedas.  Hence  it  results  that  the 
owner  of  the  soil  cannot  make  use  of  the  soil  in  any  manner  which 
causes  an  obstruction  of  the  way.  Then  the  question  is,  what 
amounts  to  an  obstruction  of  the  right  of  way  ?  *The  r*qo/\-i 
law  furnishes  the  answer.  Any  thing  by  means  of  which  L 
the  use  of  the  land  for  the  purposes  of  the  way,  is  or  may  be 
rendered  less  beneficial.  An  actual  corporeal  impediment  is  by 
no  means,  an  essential  part  of  the  definition  of  an  obstruction  of 
a  private  way.  Any  unauthorized  walking  over  it,  is  a  construc- 
tive obstruction  of  it,  for  which  an  action  lies.  The  chief  benefit 
of  a  private  way,  consists  in  its  privacy.  The  fewer  other  persons 
who  use  it,  the  more  ample  and  beneficial  is  its  enjoyment,  actual 
or  potential,  to  the  man  who  has  the  right  of  way.  And  with 
respect  to  those  who  have  the  right  to  use  it  in  common  with  him, 
the  fewer  the  places  to  and  from  which  it  serves  as  a  passage,  and 
the  nearer  such  places  lie  to  the  way  itself,  or  to  one  another,  the 
more  ample  and  beneficial  is  its  enjoyment,  because  it  is  by  so 
much  the  more  private,  and  less  liable  to  interruption. 

If  a  man  who  has  a  right  of  way  over  land,  for  the  purpose  of 
passing  from  A.  to  B.,  uses  the  land  for  the  purpose  of  passing 
from  A.  to  C-,  it  will  be  no  excuse  for  his  doing  so,  that  in  going 
from  A.  to  C.  he  passed  through  B.  and  therefore  really  went 
from  A.  to  B.  That  an  action  of  trespass  against  him  who  has 
the  way,  will  lie  in  such  a  case,  at  the  suit  of  the  owner  of  the 
soil,  appears  from  1  Rol.  Abr.  391,  pi.  1,  2,  3  ;  Howell  v.  King, 
(1  Mod.  190 ;)  Webster  v.  Bach,  (3  Keble,  848  ;  Freem.  247, 
s.  c.)  And  that  under  similar  circumstances,  an  action  on  the 
case  will  lie  against  him,  at  the  suit  of  one  who  has  himself  noth- 
ing but  a  mere  right  of  way,  appears  from  Laugliton  v.  Ward, 
(1  Ld.  Ray.  75  ;)  1  Lutw.  Ill,  s.  c. ;  Nels.  Lutw.  41,  s.  c. ; 
3  Ld.  Ray.  85,  pleadings,  s.  c.  The  last  case  proves  that  such  a 
use  of  the  land,  which  is  the  subject  of  the  way,  is  an  obstruction 
of  the  right  of  way,  for  which  an  action  will  lie  at  the  suit  of  one 
who  has  nothing  more  than  a  right  of  way. 

It  may  be  conceded  that  the  same  strictness  does  not  apply  as 
against  the  owner  of  the  soil,  unless  he  has  expressly  or  im- 
pliedly  limited  or  restrained  the  extent  of  his  own  right  of  pas- 
sage over  the  land,  which  forms  the  subject  of  another's  right  of 
way.  But,  if  he  has  expressly  or  impliedly  limited  it,  he  can 
have  no  right  of  passage  beyond  the  bounds  of  the  restriction, 


330  SUPREME  COURT.  \~Dec.  Term, 

(Kirkham  t>.  Sharp.) 

which  he  has  imposed  upon  himself.  Such  a  restriction  is  in  this 
case  imposed,  by  the  terms  of  the  grant  of  way,  in  the  deed^of 
February  4th,  1792,  from  Litle  to  Smock.  This  deed  defines 
the  limits  of  the  alley,  and  restrains  both  parties  from  using  it 
for  any  other  purposes  than  those. which  might  be  connected  with 
the  use  and  occupation  of  the  two  houses  immediately  adjoining 
it.  (Here  the  counsel  went  into  an  elaborate  argument  upon 
the  construction  of  the  deed,  as  governed  by  the  terms  of  the 
particular  clause,  in  which  the  alley  is  mentioned,  and  other 
clauses  contained  in  it,  as  applied  to  the  particular  property  in 
question.)  It  is  true,  that  at  the  date  of  this  deed  the  grantor 
owned  the  adjacent  property,  to  which  the  defendant  would  now 
•use  the  alley  as  a  passage.  But  the  description  in  the  deed  of  1792 
r*oo-in  *shows  that  for  all  purposes,  connected  with  the  lot  con- 
veyed to  Smock,  this  adjacent  property  was  as  com- 
pletely severed  from  the  two  houses  bounding  on  the  alley,  as  if 
it  had  then  belonged  to  a  stranger.  Both  of  them  were  separated 
from,  and  deprived  of  all  access  to  it  by  the  wall  of  the  stable 
called  for  in  the  deed  as  a  boundary  ;  and  the  restriction  of  the 
depth  of  the  alley  to  45  feet  from  Fourth  street,  less  than  half 
the  distance  of  this  stable  wall  from  the  street,  negatives  the  pos- 
sibility of  an  intention  in  either  party,  that  the  alley  should  ever 
serve  as  a  passage  to  and  from  property  beyond  that  wall.  It  ia 
as  a  passage  to  and  from  the  property  beyond  the  wall,  however, 
that  the  defendant  has  used  the  alley.  This  is  a  use  of  it  contrary 
to  the  plain  meaning  of  the  deed  of  1792.  This  is  a  strong  case 
for  the  application  of  the  maxim:  Verbafortius  accipiuntur  con- 
tra proferentem.  The  grantee,  Mr.  Smock,  took  the  lot  under  a 
covenant  in  the  deed,  which  compelled  him  to  erect  a  brick  house 
on  it.  He  went  to  the  expense  of  building  this  house,  adapting 
his  plans  of  course  to  the  precise  description  of  the  alley  con- 
tained in  the  deed.  The  true  construction  of  the  deed  is,  to  inter- 
pret it  as  though  the  house  covenanted  for,  had  been  already 
built,  in  the  same  manner,  in  which  it  was  afterwards  built  in 
pursuance  of  the  covenant.  The  grant  of  the  way  is  evidently 
designed  to  place  the  grantee  of  it,  quoad  his  house,  on  a  footing 
at  least  equal  witli  the  footing  on  which  the  grantor  was  himself 
to  remain,  quoad  the  privilege  granted  as  to  the  adjoining  house. 
This  is  the  import  of  the  words  full  and  free,  annexed  to  the 
description  of  the  privilege  granted  ;  as  to  which  see  Smith  v. 
Kempe,  (2  Salk.  687.)  The  counsel  in  the  course  of  their  argu- 
ment under  this  head  commented  particularly  upon  fivans  v. 
Desilver,  (8  Serg.  &  Rawle,  92,  96,)  and  Watson  v.  Bioron,  (1 
Serg.  &  Rawle,  227,  230.  The  length  of  nonuser  and  nonclaim 
of  user  by  the  defendant,  and  those  under  whom  he  holds,  of  the 
right  which  he  now  asserts,  was  a  point  also  made  by  the  plain- 


1835.]  OF  PENNSYLVANIA.  331 

(Kirkham  V.  Sharp.) 

tiff's  counsel  who,  under  this  head  of  the  argument,  endeavored  to 
distinguish  the  case  from  Butz  v.  Jhrie,  (1  Bawle,  218 ;)  this 
heing  not  a  case  of  mere  nonuser  on  the  one  side,  but  of  nonuser 
during  a  period  of  continued,  active,  exclusive  user  on  the  other 
side.  Wynkoop  v.  Burger,  (12  Johns,  222 ;)  Comstock  v.  Van- 
derson,  (5  Pick.  163,  167.) 

At  all  events  the  plaintiff  is  entitled  to  judgment  on  the  ground, 
that  the  defendant  passed  over  the  alley  with  a  horse.  Nothing 
can  excuse  the  conversion  of  a  footway  into  a  horseway  even  by 
the  owner  of  the  soil.  It  is  a  public  nuisance  for  a  man  to  ride 
on  the  footway  of  a  public  highroad.  The  rules  of  pleading  re- 
quire that  the  character  of  the  way,  whether  footway  or  horse- 
way  or  both,  be  mentioned  on  the  record.  Allan  v.  Brounsall, 
(Yelv.  163-4;)  Brownl.  215-6,  s.  c.;  3  Ld.  Raym.  85.  The 
necessity  of  such  an  averment  is  a  decisive  proof  that  the  two 
species  of  way  are  wholly  distinct  and  not  to  be  confounded. 

*  Arguments  for  the  defendant: 

If  the  plaintiff's  point  could  not  have  been  sustained  L 
in  1792,  immediately  after  the  deed  to  Smock,  it  cannot  have  de- 
rived strength  from  any  thing  which  has  since  occurred.  Neither 
the  mode  in  which  his  house  was  afterwards  erected,  nor  the  length 
of  time  during  which  the  alley  was  afterwards  suffered  to  remain 
in  its  original  situation,  nor  the  greater  or  less  degree  of  con- 
venience or  inconvenience  from  subsequent  circumstances,  can 
avail  him  in  any  wise.  [This  the  Court  distinctly  granted  to  the 
counsel.] 

Then  the  case  must  turn  upon  the  clause  respecting  the  alley 
contained  in  the  deed  of  1792.  This  contains  no  express  restric- 
tion of  any  sort  against  the  grantor.  It  merely  gives  a  right  of 
passage  to  the  grantee.  Now,  whatever  was  not  transferred  away 
by  the  grantor,  remained  in  him  as  of  his  former  estate.  Before 
the  deed  to  Smock,  the  strip  which  forms  the  alley  was  the  grant- 
or's own,  to  use  as  he  pleased,  on  foot  or  with  horses,  to  pass  and 
repass  to  and  from  what  place  or  places  he  pleased.  The  same  right 
remained  in  him  afterwards,  to  use  as  he  might  please,  so  that 
he  did  not  make  any  actual  obstruction,  in  a  corporeal  sense,  of 
the  way.  If  he  left  the  space  of  the  alley  open  at  all  times,  when 
the  use  of  it  for  the  plaintiff's  house  might  be  necessary  or  con- 
venient, it  does  not  belong  to  the  plaintiff  to  complain  what  use 
he  made  in  other  respects  of  land  which  was  his  own.  The  con- 
trary doctrine  would  be  inconvenient,  and  in  this  city  would  be 
restrictive  of  the  improvement,  and  prejudicial  to  the  enjoyment 
of  property.  It  is  a  highly  artificial  doctrine  which  recognizes 
the  possibility  of  a  mere  constructive  obstruction  of  an  easement 
or  passage  by  means  which  oppose  no  corporeal  impediment  to 


332  SUPREME  COURT  [Dec.  Term, 

(Kirkham  t?.  Sharp.) 

the  use  of  it.  The  cases  in  1  Ro.  Ab.;  1  Mod.  3 ;  Keble  £ 
Freeman,  were  all  cases  in  which  the  complaint  was  sustained 
at  the  suit  of  the  owner  of  the  soil  in  an  action  of  trespass. 
Laughton  v.  Ward,  (1  Ld.  Raym.  75  &  Lutw.  Ill,)  it  is  true, 
was  an  action  by  a  man  who  had  only  a  right  of  way ;  but  it  was 
brought  not  against  the  owner  of  the  soil,  but  against  another 
person  who  had  himself  only  a  mere  right  of  way.  The  case, 
therefore,  is  not  in  point  against  the  owner  of  the  soil.  In  favor 
of  the  owner  of  the  soil  the  cases  apply,  in  which  it  has  been  held 
as  to  public  roads,  that  the  owner  of  the  land  over  which  they 
pass,  retains  all  his  former  rights,  subject  only  to  the  easement 
enjoyed  by  the  public.  Nothing  short  of  an  actual  impediment 
is  considered  as  the  obstruction  of  a  highway.  In  the  present 
case  we  contend,  that  it  was  competent  to  the  defendant  to  con- 
vert the  alley  in  question  into  a  thoroughfare  from  a  manufactory 
situated  elsewhere,  or  in  short,  if  he  pleased  to  convert  it  into  a 
public  highway,  provided  he  left  the  plaintiff  reasonable  means  of 
egress  and  regress  over  the  alley,  at  suitable  times,  to  such  ex- 
tent as  the  purposes  of  a  dwelling-house  might  require.  A  multo 
fortiori,  he  was  entitled  to  use  it  for  the  purpose  of  passing  and 
r*qqq-i  repassing  to  and  from  land  of  his  own,  part  *of  the 
J  same  property  which  originally  included  the  plaintiff's 
own  lot,  and  belonged  to  the  grantor,  under  whom  the  plaintiff 
claims,  at  the  time  when  his  own  lot  was  granted  to  the  person 
under  whom  he  holds  it. 

The  defendant's  counsel  cited  the  following  authorities :  Stack- 
pole  v.  Ely,  (16  Mass.  33  ;)  Purdy  v.  Chandler,  (6  Mass.  454 ;) 
Robins  v.  Bond,  (1  Pick.  122;)  Cortelyou  v.  Van  Brunt,  (2 
Johns.  357;)  Stark.  Ev.,Pt.  4,  1679,  1680;  G-oodtith  v.  Alker, 
(1  Burr.  133, 143,  146;)  Russell  v.  Jackson,  (2  Pick.  574;) 
Matthew's  Pres.  Ev.  325. 

The  opinion  of  the  Court  was  delivered  by 

GIBSON,  C.  J. — The  sum  of  the  few  authorities  which  bear  on 
the  point  before  us,  is  given  in  Cruise's  Digest,  Tit.  24,  §  15, 
where  it  is  said  that  the  use  of  a  way  must  be  according  to  the 
grant  or  the  occasion  of  it,  and  not  exceed  it ;  so  that  a  right  of 
way  over  another's  ground  to  a  particular  place  will  not  justify 
the  use  of  it  to  go  beyond  that  place.  For  this  is  cited  Howel 
v.  King,  (1  Mod.  190 ;)  and  Lawton  v.  Ward,  (1  Ld.  Raym. 
75 :)  which  bear  a  considerable  resemblance  to  the  present  case. 
In  the  former  of  them  A.  having  a  right  of  way  over  B.'s  ground 
to  Blackacrc,  drove  his  cattle  not  only  to  Blackacre,  but  to  a 
place  beyond  it;  and  it  was  argued  that  when  they  were  at 
Blackacre  he  might  drive  them  whither  he  would.  On  the  other 
side  it  was  urged,  that  if  such  were  the  law,  A.  might  purchase 


1835.]  OF  PENNSYLVANIA.  333 

(Kirkham  v.  Sharp.) 

any  indefinite  number  of  acres  adjoining  Blackacre,  by  which  the 
grantor  of  the  way.  might  be  entirely  deprived  of  the  benefit  of 
his  land  ;  and  that  as  prescription  pre-supposes  a  grant,  it  ought 
to  be  continued  according  to  the  intent  of  its  original  creation ; 
to  which  the  Court  assented,  and  gave  judgment  accordingly. 
Were  the  defendant  the  grantee  of  an  easement,  this  principle 
would  be  decisive  of  our  case ;  but  he  is  the  owner  of  the  soil 
subject  to  an  easement  granted  by  his  predecessor  to  the  other 
side,  and  consequently  the  owner  of  all  the  ground,  over  which 
he  passes  in  going  from  the  street  to  the  termination  in  dispute  ; 
and  the  difficulty  is  to  understand  how  an  injury  is  done  to  the 
grantee  by  any  use  of  the  grantor's  own  soil,  which  is  not  an 
actual  disturbance  of  the  easement.  I  have  found  no  authority 
for  what  struck  me,  in  the  course  of  the  argument,  as  being  a 
tenable  position,  that  the  grant  of  a  way  passes  the  whole  use  of 
it,  except  where  a  right  of  participation  by  the  grantor  is  reserved 
in  terms ;  nor  do  I  mean  to  intimate,  that  the  law  would  be  so 
held,  were  the  question  now  to  be  decided.  For  myself,  however, 
I  may  remark,  that  agreeably  to  the  rule  which  requires  a  grant 
to  be  interpreted  most  beneficially  for  the  grantee,  a  strong  argu- 
ment might  be  made  for  the  affirmative,  inasmuch  as  exclusive 
enjoyment  is  more  beneficial  than  mere  participation,  especially 
in  a  way  which  the  grantee  is  to  repair.  In  the  absence  of  spe- 
cial provision  in  the  grant,  questions  of  this  sort  *must, 
perhaps,  depend  on  the  nature  of  the  way  and  the  de- 
gree of  possession  necessary  to  its  enjoyment.  But,  not  to  insist 
on  that,  it  is  certain  that  the  ungranted  residue  of  a  right  of  way 
may  be  annexed  to  a  particular  messuage  or  close,  either  by  ex- 
press stipulation  or  necessary  implication,  according  to  the  occa- 
sion of  the  grant.  An  instance  of  this  might  be  found  in  the 
disposal  of  houses  surrounding  a  court,  originally  destined  to  be  a 
common  avenue  to  them,  in  which  it  would  be  sufficiently  obvious 
from  the  disposition  of  the  property,  that  the  right  of  way  had 
been  appended  to  the  houses  and  not  to  the  owner  of  them.  By 
the  act  of  laying  out  the  ground  as  a  court,  it  would  be  allotted 
to  the  houses  intended  to  adjoin  it,  so  as  to  pass  with  them  as  an 
appurtenance  ;  and  the  right  of  the  owner  would  be  correspond- 
ingly qualified  by  the  nature  of  the  use  to  which  it  was  dedicated. 
Sales  of  the  houses  would  successfully  abridge  it,  till  it  were 
ultimately  extinguished  along  with  his  property  in  the  last  of 
them,  when  the  purchasers  might,  by  common  consent,  bar  the 
entrance  against  his  person,  notwithstanding  his  legal  title,  just 
as  they  might  bar  it  against  a  stranger.  During  his  ownership 
of  but  a  part  of  the  property,  he  would  be  entitled  to  no  privilege 
that  he  had  not  originally  annexed  to  it ;  nor  could  his  right  to 
use  the  court  as  a  thoroughfare  to  a  messuage  or  close  adjoining 


SUPREME  COURT  [Dee.  Term, 

(Rirkham  v.  Sharp.) 

him  on  the  further  side,  be  greater  than  that  of  any  of  his  gran- 
tees. Is  not  that  the  case  before  us  ?  The  plaintiff  and  the  de- 
fendant derive  their  titles  respectively  from  the  owner  of  a  larger 
lot,  of  which  the  premises  were  parcel ;  on  the  one  extremity  of 
which  stood  the  Indian  Queen  tavern  with  its  appendances,  and 
on  the  other  a  house  in  the  tenure  of  a  Miss  Clinton.  This  house 
was  a  distinct  tenement,  and  bounded  in  the  rear  by  the  stable 
wall  of  the  tavern.  Of  the  ground  between  the  house  and  the 
tavern,  Smock,  from  whom  the  plaintiff  derives  his  title,  purchased 
a  part  for  the  site  of  a  house,  bounded  in  the  rear  also  by  the 
stable  wall,  and  on  the  side  next  to  Miss  Clinton's  house,  by  a 
line  passing  at  a  certain  distince  from  it  to  the  street,  the  inter- 
vening space,  to  the  depth  of  the  front  building,  being  left  open 
for  an  alley  to  be  used  in  common.  No  part  of  the  stable  ad- 
joined the  alley  the  entrance  to  it  being  from  another  street,  and 
in  the  rear  of  the  whole..  In  this  state  of  the  premises  Smock 
built  the  house  owned  by  the  plaintiff;  and  we  have,  therefore, 
two  houses  on  an  alley  as  the  common  easement  of  both,  which 
was  ostensibly  designed  in  its  creation  to  be  subservient  to  no 
other  part  of  the  property  ;  for  the  blind  wall  of  the  stable,  which 
was  a  durable  structure,  would  indicate  to  the  eye  of  a  purchaser, 
that  it  was  designed  for  a  permanent  barrier  against  admittance 
on  that  side  ;  so  that  in  every  material  respect,  the  case  corres- 
ponds to  that  of  the  houses  on  a  court.  It  is  plain,  therefore, 
that  to  make  the  alley  an  appurtenance  to  what  it  was  not  at  the 
time  of  the  purchase,  would  be  a  fraud  upon  the  contract.  The 
intent  of  the  parties  is  observable,  however,  not  merely  in  the 
condition  of  the  premises,  as  the  *basis  of  the  agreement, 
but  in  the  terms  of  the  conveyance.  Smock  was  to  have 
the  full  and  free  privilege  of  ingress,  egress  and  regress  ;  to  which 
end,  the  alley  was  to  be  perpetually  open  between  the  lot  granted 
and  the  house  reserved.  This  shows  to  a  reasonable  intent,  that 
the  enjoyment  of  the  alley  was  to  be  by  the  tenants  of  the  pre- 
mises particularly  named  ;  that  the  grantor,  though  owner  of  the 
soil,  reserved  no  right  to  the  alley,  but  what  was  incident  to  the 
ownership  of  his  house  ;  and  that  in  this  respect  he  put  his  right 
exactly  on  a  footing  with  that  of  his  grantee  as  a  co-tenant.  If 
so,  the  principle  of  Howell  v.  King  and  Lawton  v.  Ward  is  ap- 
plicable to  it  with  decisive  effect. 

But  again,  not  to  insist  on  the  word  "  free,"  which  was  held  in 
Smith  v.  A'empe,  (2  Salk,  G37,)  to  pass  an  exclusive  right  of 
fishery,  the  word  "  full "  was  evidently  designed  to  signify  not 
only  a  community,  but  an  equality  of  enjoyment,  both  in  the 
manner  and  the  measure  of  it ;  consequently  if  the  defendant 
might  use  the  alley  as  a  way  to  his  stable,  by  breaking  through 
the  wall,  so  might  the  plaintiff  use  it  in  subservience  to  any  ad- 


1835.]  OF  PENNSYLVANIA.  335 

(Kirkham  v.  Sharp.) 

joining  close,  which  it  might  happen  that  he  could  approach  from 
the  termination  of  the  alley  over  his  own  ground ;  and  the  princi- 
ple indicated  in  the  two  cases  cited  is,  therefore,  equally  applica- 
ble to  hoth.  But  the  plaintiff's  enjoyment,  so  far  from  being  full 
in  any  sense  of  the  word,  would  be  actually  hindered,  if  his  ser- 
vants or  children  were  exposed  to  the  danger  of  being  trampled 
upon  by  horses,  or  annoyed  by  the  transportation  of  ordure. 
These  Avould  present  an  actual  impediment  to  the  free  use  of  the 
alley  secured  to  him  by  the  conveyance.  Having  regard,  then, 
either  to  the  nature  of  the  occasion  or  the  terms  of  the  grant,  it 
it  seems  clear,  that  the  alley  was  devoted  to  the  ordinary  pur- 
poses of  the  houses ;  and  that  the  defendant  could  not  lawfully 
pass  with  his  horses  through  it,  or  use  it  as  a  common  footway  to 
his  stable. 

Judgment  for  plaintiff  generally. 

Cited  by  Counsel,  6  Wharton,  310 ;  8  Watts  &  Sergeant,  469 ;  7  Barr, 
475  ;  1  Jones,  185  ;  4  Casey,  111 ;  6  Wright,  421 ;  2  Ashmead,  218. 

Cited  by  the  Court,  6  Wharton,  45,  207  ;  8  Watts,  440  ;  5  Watts  &  Ser- 
geant, 140,  143 ;  4  Barr,  487 ;  10  Id.  97 ;  11  Harris,  351  ;  2  Casey,  444 ;  9 
Id.  149  ;  6  Wright,  66  ;  14  Id.  424. 

Followed,  7  Barr,  491. 

See  also,  8  Barr,  390 ;  4  Casey,  184 ;  12  Wright,  183. 


END  OF  DECEMBER  TERM,  1835. 


CASES 

m 

THE  SUPREME  COURT 

OP 

PENNSYLVANIA. 


EASTERN  DISTRICT— MARCH  TERM,  1836. 


[PHILADELPHIA,  MARCH  21st,  1836.] 
INGERSOLL  against  SERGEANT. 

1.  The  statute  of  Quia  Emptores,  (18  Edw.  1,  st.  1,  c.  1,)  never  was  in 
force  in  Pennsylvania. 

2.  A  ground-rent  in  Pennsylvania,  i.  e.  a  rent  reserved  to  himself  and  his 
heirs  by  the  grantor  of  lands  in  fee,  is  a  rent-service,  and  not  a  rent-charge. 

3.  A  release  of  part  of  the  land  out  of  which  such  ground-rent  issues,  from 
the  rent,  does  not  extinguish  the  whole  rent,  but  merely  discharges  the 
part  released,  and  leaves  the  remaining  part  of  the  land  subject  to  its  due 
proportion  of  the  rent. 

4.  A.  being  seised  of  a  lot  of  ground  in  the  City  of  Philadelphia,  which 
was  subject  to  a  redeemable  ground-rent  of  $351  per  annum,  on  the  9th 
of  October,  1818,  conveyed  the  said  lot  to  B.  in  fee,  free  and  discharged 
from  the  rent ;  and  covenanted  in  the  conveyance  to  extinguish  the  said 
rent,  within  the  time  limited  in  the  original  deed,  or  within  any  ex- 
tended t'me  for  extinguishing  the  same,  and  in  the  mean  time  to  keep  B. 
indemnified,  &c.     On  the  18th  of  Octol>er,  the  holder  of  the  ground-rent 
conveyed  the  same  to  C.,  who  on  the  6th  of  February,  1819,  agreed,  by 
endorsement  on  the  deed,  to  extend  the  time  of  redemption  for  10  years. 
On  the  30th  of  April,  1819,  B.  conveyed  to  D.  in  fee,  a  part  of  the  lot 
conveyed  to  him  by  A .,  reciting  that  it  was  part  of  a  large  lot  of  ground, 
which  A.  by  indenture  bearing  date,  &c.,  granted  and  conveyed  to  him 
in  fee,    "clear  of  all   liens  and  incumbrances  whatsoever."     On  the 
1st  of  May,  1819,  C.  by  deed  endorsed  on  the  conveyance  to  D.,  in  con- 
sideration of  $1,  released  the  lot  conveyed  to  him  from  the  payment  of 
the  said  ground-rent,  with  a  proviso,   that  nothing  therein  contained 
should  be  taken  to  impair  his  right  to  recover  the  ground-rent  from  the 
remaining  part  of  the  lot.     On  the  3d  of  May,  1819,  C.  by  deed  reciting 
the  conveyance  of  the  ground-rent  to  him,  the  agreement  for  extending 


1836.]  SUPREME  COURT  OF  PENNA.  337 

(Ingersoll  v.  Sergeant.) 

the  time  of  redemption,  and  the  release  to  D .,  conveyed  the  said  ground- 
rent  to  the  defendant  in  fee.  In  point  of  fact,  (though  nothing  ap- 
peared on  the  face  of  the  papers  to  show  it, )  the  ground-rent  was  originally 
purchased  *byC.  with  the  money  of  A.,  and  was  held  by  him  in 
trust  for  A. ;  but  the  defendant  had  no  noticeof  the  trust;  Held,  [*338] 
1st.  That  the  ground-rent  was  not  extinguished  by  the  con- 
veyance to  C .  in  trust  for  A .,  nor  by  the  extension  of  the  time  for  the  re- 
demption of  it.  2d.  That  B.  was  not  estopped  by  the  recital  in  his  deed 
to  D.,  so  as  to  subject  his  remaining  part  of  the  lot  to  the  whole  ground- 
rent.  3d.  That  the  entire  ground-rent  was  not  extinguished  by  the  re- 
lease to  D. ;  but  only  so  much  was  extinguished  as  was  equal  to  the  value 
of  the  lot  conveyed  to  D.,  compared  with  the  value  of  the  whole  lot. 

THIS  was  an  action  of  replevin  brought  by  Charles  Jared  In- 
gersoll, Esquire,  against  Mrs.  Elizabeth  Sergeant.  The  defend- 
ant avowed  for  rent  in  arrear ;  and  issue  being  joined,  the  case 
came  on  for  trial  before  Rogers,  J.,  at  a  Court  of  Nisi  Prius  held 
at  Philadelphia,  on  the  9th  of  March,  1830,  when  a  verdict  was 
found  for  the  avowant  for  $175,  rent  in  arrear,  subject  to  the 
opinion  of  the  Court  upon  the  whole  evidence,  upon  the  merits, 
without  regard  to  the  form  of  pleadings. 

The  case  was  thus: 

On  the  30th  of  September,  1811,  John  O'Connor,  with  Ann 
his  wife,  conveyed  to  Thomas  M'llwham  in  fee,  a  lot  of  ground 
situate  on  the  west  side  of  Fifth  street,  at  the  distance  of  93  feet 
10  inches  from  the  south  side  of  Walnut  street,  in  the  city  of 
Philadelphia,  containing  in  front  or  breadth  on  Fifth  street,  54 
feet,  and  in  depth  westward  99  feet  6  inches ;  reserving  to  the 
grantors  and  their  heirs  a  yearly  rent  of  $351,  payable  half 
yearly,  viz.:  on  the  first  day  of  August  and  February  in  every 
year,  and  redeemable  on  the  payment  of  $5850,  within  ten  years 
from  the  date. 

On  the  19th  of  September,  1814,  John  M'Cauley  and  Christina 
M'llwham  (in  whom  the  lot  was  then  vested,)  conveyed  the  said 
lot  to  Joseph  Reed  in  fee,  subject  to  the  said  yearly  ground-rent 
of  $351,  payable  to  O'Connor  and  his  wife. 

On  the  9th  of  October,  1818,  Joseph  Reed  and  wife,  by  inden- 
ture of  bargain  and  sale,  reciting  the  preceding  conveyance  to 
Reed,  subject  to  the  said  ground-rent,  in  consideration  of  $11,250, 
conveyed  the  same  lot  to  Charles  J.  Ingersoll,  (the  plaintiff)  in 
fee:  Habendum  to  the  said  Charles  J.  Ingersoll,  his  heirs  and 
assigns,  "free  and  discharged  from  the  aforesaid  rent-charge, 
liens  and  incumbrances  whatsoever."  Then  followed  the  usual 
covenant  of  special  warranty,  together  with  the  folloAving  cove- 
nant, "  and  the  said  Joseph  Reed  for  himself,  his  heirs,  execu- 
tors, and  administrators,  doth  further  covenant,  promise  and 
agree,  to  and  with  the  said  Charles  J.  Ingersoll,  his  heirs  and 
assigns,  by  these  presents,  that  he,  the  said  Joseph  Reed,  his 


338  SUPREME  COURT  [March  Term, 

(Ingersoll  t>.  Sergeant.) 

heirs,  executors  or  administrators,  shall,  and  will,  at  his  and  their 
own  proper  cost  and  charge,  well  and  faithfully  extinguish  the 
aforesaid  yearly  rent  charge,  of  $351,  within  the  time  limited  to 
extinguish  the  same,  or  within  any  extended  time  for  extinguish- 
ing the  same ;  and  in  the  mean  time  well  and  sufficiently  save, 
defend,  and  keep  harmless  and  indemnified,  the  said  Charles  J. 
r*qqo"i  Ingersoll,  his  *heirs  and  assigns,  from  any  charges, 
'  J  claims  or  demands  whatsoever  thereof." 

On  the  31st  of  October,  1818,  Ann  O'Connor,  widow  of  John 
O'Connor,  Ann  Christiana  O'Connor,  and  John  M.  Barclay  and 
Margaretta  his  wife,  (which  Ann  Christiana  and  Margaretta  were 
the  only  children  and  heiresses  of  the  said  John  O'Connor,)  in 
consideration  of  $5850,  conveyed  the  said  ground-rent  of  $351  to 
John  Sergeant,  Esq.,  in  fee.  On  the  6th  of  February,  1819, 
John  Sergeant,  by  endorsement  on  the  deed  of  September  30th, 
1811,  for  himself,  his  heirs,  executors  and  assigns,  agreed  to  ex- 
tend the  time  for  redemption  of  the  said  yearly  rent  charge,  for 
ten  years  from  that  date.  This  instrument  was  acknowledged  on 
the  4th  of  May,  1819. 

On  the  30th  of  April,  1819,  Charles  J.  Ingersoll,  and  wife,  in 
consideration  of  $2500,  conveyed  to  Jonathan  Smith  in  fee,  a 
part  of  the  lot  conveyed  by  Joseph  Reed,  viz.:  a  lot  at  the  dis- 
tance of  74  feet  8  inches  west  of  Fifth  Street,  containing  in 
breadth,  east  and  west,  24  feet  10  inches,  and  in  depth,  north 
and  south,  45  feet.  The  recital  in  this  deed  was  in  the  following 
words,  "being  part  of  a  larger  lot  or  piece  of  ground,  which 
Joseph  Reed  of  the  City  of  Philadelphia,  Esquire,  and  Maria  C. 
his  wife,  by  indenture  bearing  date  the  9th  day  of  October,  A.  D. 
1818,  granted  and  conveyed  unto  the  said  Charles  J.  Ingersoll  in 
fee,  clear  of  all  liens  and  incumbrances  whatsoever."  This  deed 
also  contained  the  usual  covenant  of  special  warranty. 

On  the  1st  of  May,  1819,  John  Sergeant  executed  the  follow- 
ing instrument,  which  was  endorsed  on  the  last-mentioned  deed. 

"  Whereas  the  whole  of  a  large  lot  of  ground  situate  on  the 
west  side  of  Delaware  Fifth  street,  at  the  distance  of  93  feet  16 
inches  south  of  Walnut  street,  in  the  City  of  Philadelphia  con- 
taining in  front  or  breadth  on  the  said  Fifth  street,  54  feet,  and 
in  depth  99  feet  6  inches,  (of  which  the  within  described,  and 
granted  lot  is  part,)  is  subject  to  and  charged  with  the  payment 
of  a  yearly  rent  or  sum  of  $351,  which  yearly  rent  charge  is  now 
vested  in  John  Sergeant  of  the  said  city,  Esquire :  Now,  there- 
fore, these  presents  witness,  that  the  said  John  Sergeant,  in  con- 
sideration of  the  premises,  and  of  the  sum  of  one  dollar  to  him  in 
hand  paid  by  Jonathan  Smith,  Esq.,  the  grantee  within  named, 
the  receipt  whereof  is  hereby  acknowledged,  hath,  and  by  these 
presents  doth  release,  exonerate  arid  discharge  the  within-described 


1836.]  OF  PENNSYLVANIA.  339 

(Ingersoll  c.  Sergeant.) 

lot,  which  is  at  the  distance  of  93  feet  10  inches  south  of  Walnut 
street,  and  74  feet  8  inches  westward  of  the  said  Fifth  street, 
containing  in  breadth,  east  and  west,  24  feet  10  inches,  and  in 
depth,  north  and  south,  45  feet,  of  and  from  the  payment  of  the 
said  yearly  rent-charge,  and  every  part  thereof,  and  of  and  from 
all  distress  and  distresses,  actions,  suits,  judgments,  executions, 
damages  and  demands  on  account  of  the  same,  and  that  the  residue 
of  the  said  recited  large  lot  only,  shall  be  held  liable  and  account- 
able *for  the  payment  of  the  said  yearly  rent  charge,  r*  04.01 
Provided  always,  nevertheless,  that  nothing  herein  con-  L 
tained  shall  in  anywise  tend  to  impair  or  injure  the  estate  and 
interest  of  the  said  John  Sergeant,  his  heirs  and  assigns,  in  and 
to  the  said  yearly  rent  charge,  or  prevent  the  recovery  of  the 
same  from  the  remaining  part  of  the  said  recited  large  lot,  but 
only  the  premises  within  granted.  In  witness  whereof,  the  said 
John  Sergeant  hath  hereunto  set  his  hand  and  seal,  this  1st  day 
of  May,  A.  D.  1819." 

This  instrument  was  acknowledged  on  the  4th  of  May,  1819. 

On  the  3d  of  May,  1819,  John  Sergeant  and  wife,  by  inden- 
ture of  bargain  and  sale,  reciting  the  conveyance  to  him  on  the 
31st  of  October,  1818,  by  Ann  O'Connor  and  others,  of  "all 
that  certain  yearly  renfccharge,  or  sum  of  $351,  chargeable  on 
and  issuing,  &c.,  out  of  all  that  certain  lot,"  &c.,  describing  it, 
and  reciting  the  preceding  release  to  Jonathan  Smith,  and  the 
agreement  of  the  6th  of  February,  1819,  by  which  the  time  of 
redemption  of  the  said  rent  charge  was  extended,  in  consideration 
of  $5235,  granted  and  assigned  "the  said  yearly  rent-charge  of 
$351"  to  Elizabeth  Sergeant,  widow  (the  avowant,)  together  with 
all  rights,  remedies,  &c :  Habendum  to  the  said  Elizabeth  Ser- 
geant in  fee ;  and  concluding  with  the  usual  covenant  of  special 
warranty. 

It  was  agreed  between  the  parties  that  Mr.  Sergeant  should  be 
considered  as  having  given  the  following  testimony  : 

"  That  the  ground  rent  in  question  was  purchased  in  the  name 
of  John  Sergeant,  and  was  paid  for  with  the  money  of  Joseph 
Reed,  and  that  the  consideration,  paid  by  the  defendant  was  paid 
over  to  Joseph  Reed.  That  Mr.  Sergeant,  at  Mr.  Reed's  request, 
executed  the  release  to  Jonathan  Smith ;  but  that  Elizabeth  Ser- 
geant had  -no  notice  or  knowledge  of  Mr.  Reed's  interest  in  the 
rent,  or  of  his  request  to  Mr.  Sergeant  to  execute  the  release, 
and  that  she  purchased  the  rent  through  a  conveyancer ;  no  com- 
munication having  ever  taken  place  between  Mr.  Sergeant  and 
any  one  in  regard  to  it,  further  than  to  execute  and  deliver  the 
deed.  That  subsequent  to  the  conveyance  to  Elizabeth  Sergeant 
some  time  in  the  summer  of  1820,  and  after  the  controversy  in 
this  cause  began,  Joseph  Reed  gave  a  memorandum  to  Mr.  Ser- 


340  SUPREME  COURT  [March  Term, 

(Ingersollt).  Sergeant.) 

geant,  dated  by  Mr.  Reed,  3d  May,  1819,  to  indemnify  him  from 
all  loss  and  damage  which  he  might  sustain,  but  that  Mrs.  Eliza- 
beth Sergeant  had  no  notice  or  knowledge  of  this  indemnity  being 
given,  nor  that  it  has  been  given.  That  Mr.  Sergeant  told  Mr. 
Reed  that  he  must  give  him  a  statement,  showing  (as  the  fact 
was,)  that  he,  Mr.  Sergeant,  had  no  interest  in  the  transaction, 
direct  or  indirect;  and  in  compliance  with  this  direction  Mr.  Reed 
gave  Mr.  Sergeant  the  paper,  dated  3d  May,  1819,  and  that  Mr. 
Sergeant  did  not  ask  Mr.  Reed  for  an  engagement  to  indemnify." 
r**U11  *The  case  was  twice  argued;  viz.  first,  at  March 
Term,  1830,  by  Mr.  J.  It.  Inyersoll,  for  the  plaintiff, 
and  by  the  plaintiff  in  person,  and  by  Mr.  Binney  and  by  Mr. 
CJiauncey  for  the  avowant ;  and  again  at  March  Term,  1835,  by 
the  same  counsel. 

Arguments  for  the  plaintiffs. 

The  question  is  whether  this  rent  charge  has  not  been  extin- 
guished by  the  acts  and  deeds  of  the  parties.  The  plaintiff  has 
paid  the  full  value  for  the  extinguishment  of  it,  and  has  a  right  to 
call  to  his  aid  any  principle  or  rule  of  law,  which  will  relieve  him 
from  the  burthen.  The  principles  relied  on  in  support  of  the 
plaintiff's  case  are  as  old  and  firmly  rooted  as  the  law  itself. 

1.  The  rent  was  extinguished  by  the  conveyance  of  the  31st  of 
October,  1818,  to  Mr.  Sergeant,  for  the  use  of  Mr.  Reed.     The 
money  went  from  the  plaintiff  directly  for  the  purpose.     Suppos- 
ing the  intention  to  have  been  fair  at  the  time,  the  method  of 
accomplishing  the  object  was  unimportant.     Mr.  Sergeant  and 
Mr.  Reed  were  one  and  the  same  for  the  purpose  of  this  transac- 
tion.    Suppose  the  conveyance  of  the  ground-rent  had  been  made 
directly  to  Mr.  Reed,  would  not  equity  have  carried  his  covenant 
into  effect,  and  extinguished  the  rent  forthwith  ?     If  the  inten- 
tion of  Mr.  Reed  was  fraudulent,  the  plaintiff  cannot  be  preju 
diced.     The  evidence  shows  a  naked  trust  in  Mr.  Sergeant  for 
Mr.  Reed.     There  was  no  consideration  except  what  passed  from 
the  latter.     By  the  statute  the  use  was  annexed  to  the  possession, 
and  Reed  became  the  holder  of  the  legal  estate.     7  Com.  Dig. 
391 ;  Griffith  v.  Chew,  (8  Serg.  &  Rawle,  31 ;)  Co.  Litt.  147,  ft, 
148, ft,  149, ft. 

2.  The  enlargement  of  the  time  of  redemption  by  Mr.   Ser- 
geant, on  the  6th  of  February,  1819,  furnishes  another  answer 
to  the  claim  for  rent.     This  was  done  without  the  concurrence 
or  even  the  knowledge  of  the  plaintiff.     At  this  time,  Mr.  Reed 
was  the  party  to  pay  off  the  rent;  and  his  agreement  to  extend 
the  time,  since  the  act  of  his  trustee  was  his  own,  was  in  violation 
of  his  covenant.     It  is  true,  that  in  the  deed  to  the  plaintiff, 
there  is  a  covenant  to  extinguish  within  the  original  or  any  ex- 


1836.]  OF  PENNSYLVANIA.  341 

(Ingersollfl.  Sergeant.) 

tended  time,  but  this  was  conditional,  and  provided  that  the 
grantee  should  be  saved  harmless,  &c.  This  extension  varied  the 
responsibility  of  the  plaintiff. 

3.  The  release  of  the  1st  of  May,  1819,  extinguished  the  whole 
rent.  This  is  certainly  the  main  question  in  the  case,  and  it  is 
one  of  considerable  importance  in  this  part  of  the  commonwealth, 
where  ground-rents  are  so  numerous.  It  is  believed  that  the  case 
of  the  plaintiff  rests  upon  some  of  the  fundamental  principles  of 
the  law,  which  it  is  impossible '  to  remove  without  danger  of 
serious  injury.  That  an  entire  contract  cannot  be  apportioned, 
is  an  unquestioned  rule.  The  authorities  are  numerous,  from 
Bro.  Ab.  Apportionment,  pi.  7,  13,  &c.,  down  to  Abbott  on  Ship- 


ping, p.  292 ;  10  Rep.  128 ;  1  *P.  Wms.  392 ;  2  P.  Wms. 
176,  501 ;  1  Salk.  65  ;  2  Mass.  Rep.  147.     The  familiar 


[*342] 


rule  respecting  the  effect  of  a  release,  runs  through  an  extensive 
circle.  Where  two  or  more  are  jointly  bound,  the  release  of  one  is 
the  release  of  all.  2  Saunders,  48,  (a :)  2  Roll.  Abr.  412,  G.  pi.  4, 
5;  Clayton  v.  Kynaston,  (2  Salk.  574;)  Hob,  70;  Cro.  Eliz.  762; 
Co.  Litt.  232,  (a;)  12  Mod.  551;  Rowley  v.  Stoddart,  (7  Johns. 
Rep.  207;)  Hostetter  v.  Kauffman,  (11  Serg.  &  Rawle,  148,  9;) 
Hunt  v.  The  U.  States,  (1  Gall.  36.)  In  the  case  of  a  co-obligor, 
the  rule  is  not  confined  to  the  case  of  an  actual  release,  but  extends 
to  a  legal  extinguishment,  as  by  obtaining  a  judgment  against  his 
fellow-obligor.  Downing  v.  F.  $  M.  Bank  of  Greencastle,  (13 
Serg  &  Rawle,  288  ;)  Robertson  v.  Smith,  (18  Johns.  459  ;) 
Smith  v.  Black,  (9  Serg.  &,  Rawle,  142.)  The  same  rule  extends 
to  property  in  lands,  jointly  liable.  Sir  Wm.  Harberfs  Case, 
(3  Rep.  14 ;)  Stevens  v.  Cooper,  (1  Johns.  Ch.  Rep.  430 ;)  Mor- 
ton v.  Croyhan,  (20  Johns.  106.)  It  governs  the  whole  subject 
of  rents.  ,It  is  well  settled,  that  there  can  be  no  apportionment 
in  respect  to  time,  dun's  Case,  (10  Rep.  127;)  Jenner  v.  Mor- 
gan, (1  Peere  Wms.  392 ;)  Hay  v.  Palmer,  (2  P.  Wms.  502 ;) 
Bentham  v.  Alston,  (2  Ver'n.  204 ;)  Van  Rensalaer  v.  Plainer, 
(2  Johns.  Cas.  17;)  Cutting  v.  Derby,  (2  Bl.  Rep.  1077;)  Leftley 
v.  Mills,  (4  Term  Rep.  173  ; )  1  Saunders'  Rep.  287  ;  Plowden, 
172 ;  1  And.  252 ;  2  Lutw.  1139 ;  Cro.  Jac.  499 ;  Cro.  Eliz. 
209  ;  Co.  Litt.  202,  a ;  4  Leon.  179  ;  Norris  v.  Harrison,  (2 
Madd.  288.)  The  same  rule  applies  to  all  periodical  payments  ; 
3  Atk.  261 ;  2  Bl.  Rep.  1016  ;  3  Bro.  C.  C.  101 ;  2  Ves.  672 ; 
Ambler,  279 ;  3  Atk.  502 ;  except  in  the  case  of  interest  upon 
bond  and  mortgage,  Banner  v.  .Love,  (13  Ves.  135;)  3  P.  Wms. 
176  ;  1  Bro.  P.  C.  207  ;  2  Ves.  672.  The  rule  is  emphatically 
applicable  to  the  case  of  a  rent-charge.  18  Viner,  504,  B.  a ; 
3  Cruise  Dig.  209,  tit.  Rents,  ch.  iii.  §  13,  &c.  11  Viner,  467, 
tit.  Extinguishment,  Goldsborough,  116 ;  Bro.  Ark.  Release ; 
Shepherd  Touchstone,  Id. ;  3  Rep.  120,'and  175 ;  5  Rep.  55, 
VOL.  i.— 23 


342  SUPREME  COURT  [March  Term, 

(Ingcrsoll  v.  Sergeant.) 

pi.  1  ;  Dyer,  308,  pi.  3  ;  Shower,  350  ;  2  Bulstr.  291 ;  12.  Mod. 
551.  It  is  not  a  question  what  the  party  meant,  if  the  rights  of 
third  persons  are  affected  as  in  this  case,  Milliken  v.  Brotvn,  (1 
Rawle,  391  ;  Barrinyton  v.  Bank  of  Washington,  (14  Serg.  & 
Rawle,  425;)  4  Cruise,  296,  Deed,  e.  19,  s.  32.  The  proviso 
which  is  relied  upon  on  the  other  side  cannot  be  allowed  to  oper- 
ate here,  since  it  is  repugnant  to  the  main  effect  of  the  grant. 
Co.  Litt.  145, 6.  Scovellv.  Cabell,  (Cro.  Eliz.  107;)  Cromwell's 
Case,  (2  Rep.  70,  &c.)  But  it  is  supposed  that  the  plaintiff  con- 
veyed to  Mr.  Smith,  clear  of  incumbrances,  and  therefore  as  to 
him  it  is  to  be  considered  as  clear.  Now  there  is  nothing  in  the 
conveying  part  or  habendum  to  this  effect.  It  is  true  that  after 
the  description  of  the  property,  follow  the  words,  "  being  the 
same  premises  which  Joseph  Reed,"  &c.  The  clause  in  the  con- 
veyance of  Reed  is  stated  in  hcec  verba.  The  whole  deed  is  there- 
r*^4Ql  f°re  referred  to,  and  notice  given  of  its  entire  ""contents, 
2  Cases  in  Chan.  246;  1  Eq.  Cas.  Abr.  331,  pi.  7  ; 
Ambler,  314  ;  1  Vernon,  149.  The  only  effect  of  the  recital 
would  be  to  destroy  the  plaintiff's  remedy  against  Smith  for  con- 
tribution. It  cannot  alter  his  right  as  to  others.  Estoppels  are 
discountenanced  by  all  the  courts.  The  defendant  cannot  avail 
herself  of  an  estoppel  in  this  Court  being  a  stranger.  Co.  Litt. 
353,  a,  b.  It  is  settled  that  an  estoppel  must  be  something  pre- 
cisely alleged,  not  by  way  of  rehearsal.  Shelly  v.  Wright 
(Willes,  9.)  When  the  truth  appears  in  the  same  record,  the 
party  is  not  estopped  to  allege  it.  Co.  Litt.  353,  b.  Here  the 
existence  of  the  rent,  if  that  be  meant  by  "  lien  or  incumbrance," 
is  shown  by  the  same  instrument.  The  rules  with  respect  to 
estoppels,  have  been  recognized  in  this  state.  Penrose  v.  Grif- 
fith, (4  Binn.  231  ;)  Downing  v.  Grallaher,  (2  Serg.  &  Rawle, 
455  ;  Christine  v.  Whitehill,  (16  Serg.  &  Rawle,  98  ;)  Werk- 
heiser  v.  Werkheiser,  (3  Rawle,  333.) 

The  law  being  well  settled  as  to  the  release  of  a  rent-charge, 
it  is  attempted  on  the  other  side  to  distinguish  the  ground-rents 
of  Pennsylvania,  from  those  which  are  called  rents-charge  in 
England,  and  elsewhere,  and  to  assimilate  them  to  rents- service, 
which  it  is  said  may  be  apportioned.  Now,  ground-rents  have 
always  been  considered  and  called  rents-charge  in  this  state.  In 
the  conveyances  and  other  instruments  in  this  case,  the  rent  in 
question  is  called  a  rent-charge  repeatedly.  The  character  and 
attributes  of  rents  are  well  explained  in  Gilbert  on  Rents,  16, 
131.  For  rent-service  there  must  be  service  of  some  kind.  The 
species  has  expired  with  the  feudal  tenures.  Rent-charges  are 
more  consonant  with  our  institutions.  The  rule  that  a  rent- 
charge  is  not  apportionable,  is  for  the  tenant's  sake.  2  Black. 
Com.  41 ;  Co.  Litt.  §  222 ;  3  Cruise  Dig.  308,  353.  The  error 


1836.]  OF  PENNSYLVANIA.  343 

(Ingersoll  v.  Sergeant.) 

of  the  argument  in  Bantleon  v.  Smith,  (2  Binn.  150,)  consists  in 
supposing  that  there  was  only  one  kind  of  rent-charge  by  the 
Elnglish  law.  C.  J.  Tilghman,  no  where  says  that  our  ground- 
rents  are  not  the  English  rent-charges. 

Arguments  for  the  avowant. 

The  doctrine  that  by  the  release  of  a  part  of  the  ground  sub- 
ject to  rent,  the  whole  is  extinguished,  is  not  likely  to  meet  with 
favor  in  modern  times.  There  seems  to  be  no  sufficient  reason 
why  a  person  who  releases  one-tenth  of  a  lot,  should  be  supposed 
to  have  forfeited  all  right  to  the  rent  of  the  remaining  nine- 
tenths,  or  why  he  who  holds  nine-tenths  of  the  ground,  should 
not  pay  that  proportion  of  the  rent.  There  is  certainly  no  such 
rigor  in  the  principle,  that  by  consent  of  the  parties  express  or 
implied,  the  rent  may  not  be  released  pro  tanto.  An  extinguish- 
ment may  be  prevented :  1st.  By  the  grantee  of  the  rent-charge 
joining  with  the  grantor  of  the  part  intended  to  be  exonerated. 
3  Cruise  Dig.  319.  Here  if  Mr.  Ingersoll  and  Mr.  Sergeant 
had  joined  in  the  conveyance  to  Mr.  Smith,  with  *a 
proviso  that  it  should  not  extinguish  the  rent,  certainly 
what  is  now  contended  for  would  not  have  taken  place.  2d. 
Another  method  of  preventing  extinguishment,  is  for  the  grantee 
to  execute  a  covenant  that  he  will  not  distrain  on  the  part  in- 
tended to  be  freed.  3  Cruise,  319.  Supposing  for  the  sake  of 
the  argument,  that  an  absolute  and  unconditional  release  of  a 
part  is  an  extinguishment  of  the  whole,  it  is  to  be  seen  how  far 
this  instrument  is  to  be  so  considered.  1.  This  is  not  an  absolute 
release,  but  such  a  discharge  as  is  consistent  with  the  existence 
of  the  rent.  The  proviso  is  explicit  and  express,  and  controls 
the  whole  instrument.  If  it  be  a  nullity,  it  must  be  so  in  disre- 
gard of  the  intention  of  the  parties,  which  is  the  first  thing  to  be 
considered.  Earl  of  Clanricard1  s -case,  (Hob.  277  ;)  Crossing  v. 
Scudamore,  (1  Vent.  141  ;)  Roe  v.  Branmer,  (2  Wils.  75 ;) 
Morris  v.  Wilford,  (2  Levinz,  216.)  The  cases  cited  on  the 
other  side  show  that  a  proviso  will  be  inoperative  where  the  party 
attempts  to  do  something  by  his  grant,  which  from  its  nature  can- 
not be  done,  or  which  is  prohibited  by  the  rules  of  law.  2  Leon. 
132 ;  Hob.  170 ;  1  Roll.  419.  A  release  for  a  particular  pur- 
pose, though  in  general  terms,  will  be  restrained  to  the  particular 
purpose.  4  Cruise,  299,  Deed,  C.  19,  s.  31,  32,  &c. ;  Good- 
title  v.  Bailey,  (Cowper,  597)  ;  4  Cruise,  300  ;  Shepherd's  T. 
32  ;  5  Bac.  Abr.  711,  Release  K. ;  Paley  v.  Homersham,  (4 
M.  &  S.  423  ;)  Hollingsworth  v.  Fry,  (4  Dall.  347  ;)  Massey  v. 
Rawle,  (2  Binn.  537,  544;)  M' Williams  v.  Martin,  (12  Serg. 
&  Rawle,  269;)  Miller  v.  Heller,  (7  Serg.  &  Rawle,  40.)  In 
Stewart  v.  Eden,  (2  Caines,  121,)  a  release  by  the  indorsee  to 


344  SUPREME  COURT  [March  Term, 

(Ingersoll  t.  Sergeant.) 

the  drawer  of  a  note,  with  an  exception  that  he  should  always  be 
responsible  to  the  indorsee,  was  held  not  to  discharge  the  in- 
dorsers.  So  in  Kirby  v.  Taylor ,  (6  Johns.  Ch.  Rep.  242,)  a  re- 
lease to  one  of  three  guardians,  was  held  by  Chancellor  Kent, 
not  to  discharge  the  others.  This  case  was  recognized  and  ap- 
proved, and  a  similar  point  ruled  in  Ml  Clenachan  v.  Tie  Com- 
monwealth, (1  Rawle,  361.)  The  proviso  in  this  instrument  is 
not  repugnant  to  it.  Its  operation  is  to  convert  the  instrument 
into  a  covenant,  not  to  distrain  on  a  particular  part  of  the  lot. 
This  is  no  hardship  upon  the  plaintiff,  since  the  owner  of  a  rent 
may  distrain  upon  any  part,  and  the  tenant  of  the  part  made 
liable  for  the  whole,  may  have  contribution  against  the  tenants  of 
the  remaining  part.  If  a  proviso  leaves  any  benefit  to  the 
grantee,  it  is  good:  6  Yiner,  101,  Condition,  Z.  pi.  12;  Jenk. 
Cent.  96,  c.  86.  2d,  as  between  Mr.  Ingersoll  and  Mr.  Smith, 
the  latter  was  discharged  from  this  rent  previously,  and  Mr. 
Ingersoll  has  no  right  of  contribution  from  him.  The  consent  of 
the  owner  of  the  remaining  part  of  the  land,  was  therefore  given 
prior  to  the  release  ;  and  this  has  the  same  effect  as  if  he  had 
joined  in  it.  It  is  clear  that  the  plaintiff  intended  to  give  Mr. 
Reed  a  personal  credit  for  the  principal  am'ount  of  the  rent. 
Could  he  have  maintained  an  action  against  Mr.  Reed,  for  not  ex- 
tinguishing the  rent  before  September,  1821  ?  The  deed  of  30th 
f*^4^1  April,  *1819,  conveyed  to  Smith  a  portion  of  the  lot, 
0-"  free  and  clear  of  all  liens  and  incumbrances  whatsoever. 
The  intent  is  apparent  from  the  amount  of  the  consideration, 
which  was  $2500,  the  whole  consideration  in  the  deed  from  Mr. 
Reed  to  Mr.  Ingersoll,  being  $11,250,  and  from  the  deed  being 
silent  as  to  liability  for  the  ground-rent  or  any  part  of  it.  Un- 
doubtedly the  recital  in  this  deed  will  estop  the  plaintiff  if  he 
should  claim  contribution  from  Mr.  Smith  ;  3  Cruise,  318,  319; 
Shepherd's  T.  345  ;  Shelly  v.  Wright,  (Willes,  9 ;)  4  Cruise, 
307,  317  ;  2  Eq.  Cas.  Abr.  652 ;  Co.  Litt.  351,  b  ;  Rolle's  Abr. 
872;  Penn  v.  Preston,  (2  Rawle,  14.) 

The  doctrine  of  rent-charge  is  of  feudal  origin.  That  of  rent- 
service  is  more  reasonable.  The  English  rent-charge  was  an  im- 
position of  burthen  or  charge  on  the  land,  in  the  form  of  an 
annual  rent,  payable  by  the  owner  of  the  land.  It  was  said  to 
be  a  charge  against  common  right.  It  was  probably  first  adopted 
as  a  means  of  providing  for  younger  children.  It  was  considered 
as  contrary  to  the  policy  of  the  common  law,  because  the  tenant 
was  less  able  to  perform  the  military  services  to  which  he  was 
bound  by  his  tenure.  3  Cruise,  309,  Rent,  c.  1,  s.  9.  Distress 
was  not  incident  to  such  a  rent,  unless  annexed  to  the  grant. 
This  being  the  character  of  the  English  rent-charge,  the  reasons 
for  the  doctrine  of  extinguishment  are  feudal,  arising  out  of  the 


1836.]  OF  PENNSYLVANIA.  345 

(Ingersoll  v.  Sergeant. ) 

peculiar  relation  of  the  tenant  who  granted  the  rent,  with  his 
lord,  and  from  the  policy  of  the  law  in  relation  to.  this  kind  of 
rent.  This  may  be  seen  in  the  reasons  assigned  hy  Lord  Coke 
and  Baron  Gilbert  for  the  extinguishment,  where  the  owner  of 
the  rent  purchases  part  of  the  land,  or  releases  a  part  from  the 
rent.  Gilbert  on  Rents,  151,  &c. ;  3  Cruise,  353,  Rents,  c.  3,  s. 
13,  14,  15.  Is  the  Pennsylvania  ground-rent  in  character  the 
same  as  the  English  rent-charge  ?  It  is  unlike  in  many  essential 
particulars.  In  the  first  place,  the  policy  of  the  law  of  this  State 
is  favorable  to  these  ground-rents,  since  they  facilitate  the  sale 
of  lots  and  improvement  of  towns  and  other  places,  when  a  sale 
for  a  gross  sum  could  not  be  effected.  Again,  a  ground-rent  is 
a  rent  reserved,  not  a  charge  created.  It  is  in  character  anal- 
ogous to  a  rent-service,  which  is  a  reservation  of  rent  to  the  lessor, 
for  the  use  and  occupation  of  the  land,  and  ought  to  be  governed 
by  the  rules  applicable  to  that  species  of  rent.  The  owner  of  an 
English  rent-charge  had  two  remedies,  by  writ  of  annuity  and  by 
distress,  according  to  the  provisions  of  the  deed.  If  he  resorted 
to  the  writ  of  annuity,  and  obtained  judgment,  the  land  was  dis- 
charged. On  our  ground-rent,  the  remedies  are  distress,  re-entry, 
debt  and  covenant  If  the  action  of  debt  or  covenant  be  resorted 
to,  and  judgment  obtained,  the  land  is  not  discharged.  In  the 
case  of  Bantleon  v.  Smith,  (2  Binn.  152,)  C.  J.  Tilghman,  states 
expressly,  that  the  rent-charge  spoken  of  in  the  argument,  (i.  e. 
the  English  rent-charge,)  Avas  not  of  the  nature  of  the  Pennsylvania 
ground-rents.  The  doctrine  of  extinguishment  *then,  r*Q4.«n 
which  grows  out  of  a  policy  adverse  to  the  rent-charge 
in  England,  is  inapplicable  to  the  case  of  a  rent  against  which  no 
such  rule  of  policy  prevails.  The  Pennsylvania  ground-rents  are 
to  be  considered  as  untrammelled  by  any  of  the  peculiar  doctrines 
of  the  English  rent-charge,  and  the  Courts  are  at  liberty  to  give 
such  a  construction  to  conveyances  affecting  them  as  will  carry  out 
the  reasonable  intent  of  the  parties.  The  doctrine  of  extinguish- 
ment does  not  hold  with  respect  to  rent-service  ;  3  Cruise,  322, 
No.  30,  31,  32  ;  Co.  Litt.  148  (6),  169  (a),  sect.  251 ,  2,  3  ; 
Gilbert,  19  ;  Sir  Wm.  Jones,  234  ;  Saville,  69  ;  Noy,  5  ;  Co. 
Litt.  215  (a).  Even  with  respect  to  rents-charge,  the  rule  does 
not  hold  universally  ;  Co.  Litt.  £24 ;  Gilbert,  156 ;  3  Cruise,  318, 
No.  5  ;  18  Viri.  504,  Assize  of  Rent,  &c. 

Two  other  grounds  of  defence  have  been  taken, — 
1.  That  the  rent  was  extinguished  by  the  conveyance  of  the 
31st  Oct.  1818,  to  Mr.  Sergeant  for  the  use  of  Mr.  Reed.  The 
facts  are,  that  there  was  a  conveyance  to  Mr.  Sergeant,  but  not 
an  extinguishment.  The  money  was  received  by  Mr.  Reed  from 
the  plaintiff,  under  a  contract,  not  of  immediate  but  of  prospective 
extinguishment,  at  such  time  as  should  suit  his  convenience.  If 


346  SUPREME  COURT  [March  Term, 

(Ingereoll  t>.  Sergeant.) 

the  plaintiff  gave  Mr.  Reed  a  personal  credit,  and  agreed  to  re- 
pose upon  his  covenant,  the  assignment  to  Mr.  Sergeant  was  con- 
sistent with  the  contract,  and  cannot  be  construed  into  an  extin- 
guishment. As  to  the  statute  of  uses,  it  is  clear  it  had  no  opera- 
tion in  this  case.  By  the  deed  of  Mr.  Sergeant,  he  was  seized  to 
his  own  use  and  no  other.  It  is  true  that  he  was  a  trustee  for 
Mr.  Reed,  hut  this  was  not  within  the  statute  of  uses.  There  was 
no  use  for  the  statute  to  execute,  but  the  use  to  himself,  and  if 
there  had  been  an  use  upon  that  declared  in  the  deed,  the  statute 
would  not  have  executed  it.  If  the  use  had  been  executed,  still 
as  there  is  nothing  on  the  face  of  the  deed  to  affect  the  defendant 
with  notice,  the  idea  of  implied  extinguishment  would  not  be 
allowed  to  operate  against  her. 

2.  The  enlargement  of  the  time  of  redemption  by  the  deed  of 
the  6th  February,  1819,  has  also  been  relied  on.  The  answer  to 
this  is  1st,  that  the  extension  was  by  the  express  agreement  of  the 
plaintiff  on  the  9th  of  October,  1818  ;  and  2d,  that  it  did  the 
plaintiff  no  injury,  but  on  the  contrary  was  calculated  to  work  a 
benefit  to  him.  Every  one  knows  that  the  longer  the  period  of 
redemption,  the  greater  the  advantage  to  the  tenant.  If  Mr. 
Reed  had  suffered  the  time  to  elapse  without  obtaining  an  exten- 
sion, Mr.  Ingersoll  would  have  been  saddled  with  an  irredeemable 
ground-rent.  Besides  the  extension  was  inoperative  until  two 
years  after  the  defendant  bought  the  ground-rent. 

Cur.  adv.  vult. 

*And  now  at  this  term,  the  judgment  of  the  Court 
was  delivered  by — 

KENNEDY,  J. — The  plaintiff  alleges  that  the  rent  in  question  is 
in  its  nature  strictly  a  rent-charge,  and  that  the  defendant  there- 
fore, by  releasing  to  Jonathan  Smith  a  part  of  the  ground  upon 
which,  according  to  his  own  phrase,  it  was  charged,  released  the 
whole  rent.  It  becomes  material,  therefore,  to  inquire  and  see 
whether  it  be  a  rent-charge  or  not ;  and  if  not,  whether  it  is  not 
a  rent-service  ;  because  if  it  be  a  rent-service,  the  defence  set  up 
against  the  payment  of  it  cannot  avail,  at  most,  beyond  what  shall 
be  considered  a  proportional  part,  according  to  the  value  of  the 
land  released. 

According  to  Littleton,  there  are  three  sorts  of  rent ;  which  he 
specifies  in  section  213  ;  namely,  rent-service,  rent-charge,  and 
rent-seek.  "A  rent-service,"  he  says,  "is  where  the  tenant 
holdeth  his  land  of  his  lord  by  fealty  and  certain  rent,  or  by 
homage  fealty  and  certain  rent,  or  by  other  services  and  certain 
rent.  And  if  rent-service  at  any  day,  that  ought  to  be  paid,  be 
behind,  the  lord  may  distrain  for  that  of  common  riyht."  And 
in  section  218,  he  also  shows  how  a  rent-charge  and  a  rent-seek 


1836.]  OF  PENNSYLVANIA.  347 

(Ingersoll  v.  Sergeant. ) 

were  created  before  the  passage  of  the  statute  quia  emptores  ter- 
rarum,  (18th  Edw.  1,  stat.  1,  c.  1.)  He  there  says,  "if  a  man 
seized  of  certain  land,  grant  by  deed  poll,  or  his  indenture,  a 
yearly  rent,  to  be  issuing  out  of  the  same  land  to  another  in  fee, 
or  fee  tail,  or  for  term  of  life,  &c.,  with  a  clause  of  distress,  &c., 
then  this  is  a  rent-charge;  and  if  the  grant  be  without  clause  of 
distress,  then  it  is  a  rent-seek  ;  and  idem  est  quod  redditus  siccus, 
for  that  no  distress  is  incident  unto  it."  And  in  the  217th  sec- 
tion, he  lays  it  down  that  "  if  a  man  by  deed  indented  at  this 
day,  (which  was  after  the  statute  quia  emptores  had  come  into 
operation,)  maketh  a  gift  in  fee  tail,  the  remainder  over  in  fee  ; 
or  a  lease  for  life,  the  remainder  over  in  fee,  or  a  feoffment  in 
fee ;  and  by  the  same  indenture,  he  reserveth  to  him  and  to  his 
heirs  a  certain  rent,  and  that  if  the  rent  be  behind,  it  shall  be 
lawful  for  him  and  his  heirs  to  distrain,  &c.,  such  a  rent  is  a 
rent-charge;  because  such  lands  or  tenements  are  charged  with 
such  distress  by  force  of  the  writing  only,  and  not  of  common 
right."  But  before  the  passage  of  the  statute  quia  emptores,  it 
was  clearly  otherwise ;  for  in  the  216th  section,  he  says,  "  before 
that  statute,  if  a  man  had  made  a  feoffment  in  fee  simple  by  deed 
or  without  deed,  yielding  to  him  and  to  his  heirs  a  certain  rent, 
this  was  a  rent-service,  and  for  this  he  might  have  distrained  of 
common  right ;  and  if  there  were  no  reservation  of  any  rent,  nor 
of  any  service,  yet  the  feoffee  held  of  the  feoff  or  by  the  same  ser- 
vice as  thefeoff'or  did  hold  over  of  his  lord  next  paramount." 
Hence  it  is  evident  that  the  ground-rent  in  question  cannot  be 
considered  a  rent-charge,  unless  it  be  so  by  the  force  of  the  stat- 
ute quia  emptores;  but  if  it  shall  appear,  upon  examination,  that 
this  statute  is  not  and  never  has  been  in  force  in  Pennsylvania, 
then  it  would  *seem  to  be  equally  evident,  that  it  must  r*q4Q-i 
be  held  to  be  a  rent-service.  King  Charles  the  2nd,  in  L 
granting  the  province  of  Pennsylvania  to  William  Penn  and  his 
heirs,  gave  it  to  be  held  in  free  and  common  socage,  and  by 
fealty  only,  for  all  services;  (see  section  3d  of  the  charter.)  And 
by  the  17th  section  thereof,  William  Penn,  his  heirs  and  assigns, 
had  full  and  absolute  power  given  to  them,  at  all  times  there- 
after, and  forever,  to  assign,  alien,  grant,  demise  or  enfeoff  such 
parts  and  parcels  thereof,  to  such  persons  as  might  be  willing  to 
purchase  the  same,  their  heirs  and  assigns,  in  fee  simple,  fee  tail, 
for  term  of  life,  lives,  or  years,  to  be  held  of  the  said  William 
Penn,  his  heirs  and  assigns,  as  of  the  seigniory  of  Windsor  by 
such  services,  customs  and  rents  as  should  seem  fit,  to  the  said 
William  Penn,  his  heirs  and  assigns,  and  not  immediately  of  the 
said  King  Charles,  his  heirs  or  successors.  And  again  by  the 
18th  section,  it  was  further  provided,  that  the  purchasers  from 
William  Penn,  his  heirs  or  assigns,  should  hold  such  estates  as 


:'.!>  SUPREME  COURT  [March  Term, 

(Ingersoll  v.  Sergeant.) 

might  be  granted  to  them,  either  in  fee  simple,  fee  tail,  or  other- 
wise, as  to  the  said  William  Penn,  his  heirs  or  assigns  should 
seem  expedient,  the  statute  of  quia  emptores  terrarum  in  anywise 
notwithstanding.  From  these  provisions,  it  appears  most  clearly, 
that  it  was  the  intention  of  King  Charles,  to  grant  the  lands  of 
the  province  to  William  Penn,  his  heirs  and  assigns,  so  as  to  en- 
able them  to  hold  and  dispose  of  the  same  as  if  the  statute  quia 
emptorett  had  not  been  in  existence.  That  it  has  been  ever  so 
understood,  may  be  seen  and  fairly  inferred  from  both  our  legis- 
lative and  judicial  proceedings. 

By  the  14th  section  of  the  laws  agreed  on  between  William 
Penn  and  the  freemen  and  planters  of  the  province,  in  England, 
May  5th,  1682,  in  the  year  following  the  date  of  the  charter  to 
him,  it  was  declared  that  all  lands  and  goods  should  be  liable  to 
pay  the  debts  of  the  owners,  except  when  there  was  a  legal  issue, 
and  then,  though  all  the  goods,  only  one-third  of  the  land.  (See 
App.  to  Hall  &  Sellers,  vol.  Pro.  L.  page  4.)  And  on  the  7th 
of  December  in  the  same  year,  by  an  act  of  the  assembly  of  the 
province  held  at  Chester,  Ibid.  7,  one-half  of  the  land  was  made 
liable,  in  case  of  no  issue,  to  the  payment  of  debts,  where  it  was 
bought  before  the  debts  were  contracted.  By  a  subsequent  act 
passed  the  10th  of  March,  1683,  at  Philadelphia,  (Ibid.  9,)  one- 
third  of  all  the  estate  of  the  owner  upon  his  death,  including  both 
real  and  personal,  was  directed  to  be  given  to  his  wife,  another 
third  thereof  to  his  children  equally,  and  the  remaining  third  as 
he  had  directed ;  but  in  case  his  wife  had  died  before  him,  then 
two-thirds  to  be  given  to  his  children,  and  the  other  third  as  he 
had  seen  fit,  after  payment  of  his  debts.  Also,  by  another  act 
passed  at  the  same  session,  (Ibid.)  it  was  enacted  that  one-half 
of  the  estate  of  a  deceased  intestate,  without  kindred,  should  go 
to  the  governor,  and  the  other  half  to  the  public ;  this  latter  half 
by  an  act  passed  afterwards,  in  1684,  (Ibid.  10,)  was  given  to  the 
public  stock  of  the  county.  Again,  by  an  act  of  the  1st  of  June, 
f*34Ql  *1693,  (Ibid.  13,)  the  administrators  of  an  estate  were 
-•  authorized  to  sell  the  real  as  well  as  the  personal  estate 
of  their  intestate,  for  the  purpose  of  paying  his  debts;  and  after 
paying  them  were  directed  to  pay  the  surplus,  where  their  intes- 
tate died  without  kindred,  one-half  thereof  to  the  governor,  and 
the  other  to  the  county  stock.  Here  we  see  that  among  the  first 
regulations  agreed  on  and  adopted  in  England,  with  a  view  to 
the  future  settlement  of  the  province,  the  right  of  escheat,  in 
favor  of  creditors,  was  clearly  taken  away.  And  shortly  after- 
wards, the  surplus,  if  any,  after  payment  of  the  debts  of  the 
intestate  dying  without  kindred,  was  given  to  the  governor  of 
the  province  and  the  public  in  equal  parts.  The  half  allotted  to 
the  public,  was  subsequently  given  to  the  county ;  thus  making 


1836.]  OF  PENNSYLVANIA.  349 

(Ingersoll  v.  Sergeant.) 

a  disposition  of  his  estate  that  had  no  relation  or  connection 
whatever  with  the  tenure  by  which  he  held  it;  so  that  the  right 
of  escheat  can  scarcely  he  said  to  have  been  introduced  into  the 
province  before  the  year  1700.  Then  an  act  of  the  assembly  for 
ascertaining  the  descent  of  lands,  and  better  disposition  of  the 
estates  of  persons  dying  intestate  was  passed;  (Ibid.  16.)  This 
act,  after  making  all  the  lands  as  well  as  the  personal  estate  of 
the  intestate,  liable  to  be  seized  and  sold  by  his  administrators 
for  the  payment  of  his  debts,  directed,  by  the  second  section 
thereof,  that  in  case  he  should  leave  no  known  kindred,  then  all 
his  lands,  tenements  and  hereditaments  should  descend  and  go  to 
the  immediate  landlord,  of  whom  such  lands  were  held,\\is  heirs 
and  assigns ;  and  if  held  immediately  of  the  proprietary,  then 
to  the  proprietary,  his  heirs  and  assigns;  and  all  the  goods, 
chattels,  and  personal  estate  to  the  proprietary  and  governor,  his 
heirs  and  assigns.  Now,  here  we  have  the  right  of  escheat  es- 
tablished upon  and  regulated  according  to  the  right  of  subinfeu- 
dation,  and  the  principle  of  tenure  between  the  last  feoffee  or 
ter-tenant  and  his  immediate  feoffor  or  vendor.  The  same  pro- 
vision in  regard  to  the  right  of  escheat  was  introduced  into  a  new 
intestate  law  passed  in  1705,  (Hall  &  Sellers,  vol.  Pro.  L.  35,) 
which  continued  in  force  till  after  the  revolution.  This  regula- 
tion of  the  right  of  escheat  was  in  direct  contravention  to  the 
statute  quia  emptores;  which  was  enacted  expressly  for  the  pur- 
pose of  securing  it  to  the  lord  paramount,  instead  of  the  imme- 
diate landlord  or  feoffor  or  vendor,  in  every  case  of  the  tor-tenant's 
dying  Avithout  heirs ;  together  with  the  right  of  marriage  and  of 
wardship,  which  were  also  claimed  as  the  fruits  of  the  feudal 
system.  The  two  last  of  these  rights  however,  were  taken  away 
by  12  Car.  2,  c.  34,  some  six  years  before  the  granting  of  the 
province  to  William  Penn ;  so  that  the  door  seems  to  have  been 
completely  closed  from  the  first  in  the  province,  against  the  in- 
troduction of  the  only  remaining  right  that  existed  under  the 
authority  of  the  statute  quia  emptores  terrarum.  As  to  judicial 
evidence  of  the  non-existence  of  this  statute  here,  I  refer  first  to 
the  case  of  Dunbar  heir  of  Dunbar  v.  Jumper  assit/nee  of  Thomp- 
son, (2  Yeates,  74,)  where  upon  a  mutual  *deed  exe-  r*Q^rn 
cuted  by  the  vendor  and  the  vendee,  by  which  the  "- 
vendor  sold  and  conveyed  an  acre  of  land  to  the  vendee  in  fee,  it 
being  necessary  for  a  grist  mill  of  the  vendee,  in  consideration  of 
the  vendee's  yielding  and  paying  to  the  vendor  and  the  lawful 
heir  of  his  body,  the  privilege  of  grinding  such  grain  as  might 
be  used  or  consumed  by  the  vendor  in  his  private  family,  on  the 
plantation  which  he  then  occupied,  or  the  heir  of  his  body,  on  the 
said  plantation  after  his  decease,  free  of  toll,  as  long  as  the  mill 
should  be  in  order  to  grind,  it  was  held  by  Shippen  and  Yeates, 


350  SUPREME  COURT  [March  Term, 

(Ingersoll  «.  Sergeant.) 

Justices,  at  Nisi  Prius,  at  Carlisle  in  1796,  that  an  action  of 
covenant  was  maintainable  by  the  heir  at  law  of  the  vendor 
against  Jumper  the  assignee  of  Thompson  the  vendee,  for  refus- 
ing to  grind  grain  toll  free  for  the  plaintiff,  according  to  the  terms 
of  the  deed.  Now  under  the  statute  quia  emptores,  if  it  had 
been  in  force  here  when  this  case  was  decided,  and  our  lands  con- 
sidered as  held  under  feudal  tenures,  the  grinding  of  the  grain 
ought  to  have  been  regarded  as  a  rent-charge,  and  perhaps  more 
properly  so,  than  a  ground-rent  reserved  on  a  deed  poll.  But  a 
covenant  to  pay  a  rent-charge  is  merely  personal  and  collateral  to 
the  land,  and  therefore  will  not  render  the  assignee  liable  to  an 
action  of  covenant  for  the  non-performance  of  it.  Brewster  v. 
Kitchen,  Kitchell,  or  Kidgell,  (1  Ld.  Raymond,  322,  s.  c.  Holt, 
175;  5  Mod.  374 ;  1  Salk/198;  12  Mod.  170-1  ;)  Cook  v.  Earl 
of  Arundel,  (Hardr.  87  ;)  Platt  on  Co.  65,  475.  Hence  we  may 
very  fairly  conclude,  that  the  Court  in  Dunbar  and  Jumper  did 
not  consider  the  statute  of  quia  emptores  in  force  here,  otherwise 
they  would  not  have  held,  as  they  did,  that  the  covenant  of  the 
vendee  to  grind  toll  free  ran  with  the  land,  and  that  the  assignee 
or  terre-tenant  thereof  became  liable  to  an  action  of  covenant  for  not 
fulfilling  it.  So  in  the  case  of  Bantleon  v.  Smith,  (2  Binn.  146,) 
this  Court,  where  the  rent  in  question  was  a  ground-rent,  like  the 
present,  appear  to  have  taken  a  material  distinction  between  it 
and  th°t  which  is  strictly  and  technically  so  called,  and  to  have 
excluded  all  operation  of  the  statute  quia  emptores  from  a 
ground-rent,  by  which  alone,  it  can  be  converted  into  a  rent- 
charge.  And  although  the  late  Chief  Justice,  who  delivered  the 
opinion  of  the  Court,  there  calls  it  a  rent-charge,  as  it  had  been 
frequently  before  and  since,  by  Judges  of  this  state  without  intend- 
ing to  pronounce  it  strictly  a  rent-charge,  yet^he  is  particular  in 
the  course  of  his  opinion,  to  distinguish  it  from  a  rent-charge, 
and  upon  the  distinction  so  .taken,  the  opinion  of  the  Court 
seems  to  be  founded.  He  says,  page  152,  "upon  examining 
these  cases,  and  those  cited  on  the  same  subject  by  the  plaintiff's 
counsel,  (meaning  English  cases  cited  by  the  counsel  on  both 
sides  in  the  course  of  their  arguments,)  it  will  appear  that  the 
rent-charge  there  spoken  of,  was  not  of  the  nature  of  the  rent  then 
in  question.  It  was  the  case  of  a  man  who  granted  to  another  and 
his  heirs,  a  yearly  sum  of  money,  and  charged  it  on  his  land,  with 
power  to  the  grantee  to  distrain"  This  doubtless  was  the  only 
j-^or-j-i  *mode  known  to  the  English  law  anterior  to  the  statute 
quia  emptores,  by  which  a  rent-charge  could  be  created ; 
and  by  that  statute  a  fee  farm-rent  in  England,  which  prior  thereto, 
was  substantially  the  same  with  our  ground-rent,  was  converted  into 
a  rent-charge,  if  accompanied  by  a  clause  of  distress,  by  consider- 
ing the  words  "  reserving  to  the  feoffer,  £c.,  a  rent  of,  £c.,"  the 


1836.]  OF  PENNSYLVANIA.  351 

(Ingersoll  v.  Sergeant.) 

words  of  the  feoffee,  and  as  amounting  to  a  grant  by  him  of  the 
rent  to  the  feoffor,  6  Bac.  Abr.  page  6,  tit.  sub-division,  rent- 
char  r/e,  instead  of  holding  them  to  be  as  in  truth  they  were,  the 
words  of  the  feoffor;  and  as  they  had  previously  at  least  ever 
been  so  considered.  1  Inst.  143,  b.  And  this  seemingly  forced 
construction  of  making  the  words  in  fact  of  the  feoffor,  to  be  the 
words  in  law  of  the  feoffee,  would  appear  to  be  necessary  in  order 
to  comprehend  how  it  is  that  a  fee-farm  rent  in  England  is  con- 
verted into  a  rent-charge  by  the  operation  of  the  statute.  But 
what  proves  most  incontestably  that  the  Judges,  who  decided  the 
case  of  Bantleon  and  Smith,  did  not  consider  the  statute  quia 
emptores  in  force  here,  is,  their  report  of  the  English  statutes  in 
force,  excluding  it,  which  was  made  in  the  year  preceding,  (1808,) 
in  obedience  to  a  resolution  of  the  Legislature  requiring  them  to 
report  all  the  English  statutes  then  in  force  in  the  state.  As 
further  evidence  of  the  judicial  course,  going  to  prove  that  this 
statute  has  not  been  considered  in  force  here,  actions  of  covenant 
have  been  brought  and  maintained  for  the  recovery  of  ground- 
rents  reserved  in  fee  and  for  life,  upon  lands  granted  in  fee,  when 
in  arrear,  by  the  assignees  thereof,  in  some  instances  against  the 
grantees  of  the  lots,  who  first  covenanted  to  pay  them,  and  in 
others  against  their  assignees.  See  Philips  v.  Clarkson,  (3 
Yeates,  124;)  Streaper  v.  Fisher,  (1  Rawle,  155  ;)  Herbauyh  v. 
Zentmyer,  (2  Rawle,  159 ;)  Royer  v.  Ake,  (3  Penn.  Rep.  461 ;) 
Miles  v.  St.  Mary's  Church,  (ante,  229.)  But  if  the  statute  had 
been  in  force  here,  the  ground-rent,  recovered  in  these  cases, 
would  by  means  thereof,  have  been  converted  into  a  mere  rent- 
charge;  and  then,  as  has  been  already  shown,  the  covenant  on 
the  part  of  the  grantee  of  the  land  to  pay  the  rent  would  have 
been  simply  personal,  and  collateral  to  the  land  ;  upon  which  no 
action  could  have  been  sustained  against  the  assignee  of  the 
grantee  thereof. 

Having  now  shown  that  the  feudal  rights  of  marriage  and  ward- 
ship, to  secure  the  enjoyment  of  which,  together  with  that  of  es- 
cheat to  the  chief  lords,  was  the  only  inducement  for  passing  the 
statute  quia  emptores,  were  taken  away  by  the  statute  of  12  Car. 
2,  c.  34,  a  few  years  before  the  grant  of  the  province  to  William 
Penn ;  and  that  the  right  of  escheat  here  was  established  in  the 
earliest  settlement  of  the  province  upon  a  totally  different  prin- 
ciple, recognizing  distinctly  the  right  of  subinfeudation  ;  that  the 
decisions  of  our  Courts  have  been  at  variance  with  its  operation  ; 
and  not  being  aware  of  even  the  shadow  of  evidence  tending  to 
show  the  contrary,  *I  am  inevitably  brought  to  the  con-  r*qr;9i 
elusion,  that  it  never  had  any  existence  here. 

This  statute  then  being  out  of  the  way,  we  have  seen  that 
according  to  the  principles  of  the  common  law,  (Littleton,  sec. 


352  SUPREME  COURT  [March  Term, 

(Ingersoll  v.  Sergeant.) 

216,)  the  rent  in  question  is  clearly  a  rent-service.  And  Lord 
Coke,  in  his  commentary  upon  this  section,  (Co.  Lit.  143,  a,) 
adds  "  at  the  common  law,  if  a  man  had  made  a  feoffment  in  fee 
hy  parol,  he  might  upon  that  feoffment  have  reserved  a  rent  to 
him  and  his  heirs,  because  it  was  a  rent-service  and  a  tenure 
thereby  created."  It  was  called  a  rent-service,  because  it  was  a 
compensation  for  the  services  to  which  the  land  was  originally 
liable;  3  Cruise  Dig.  Rents,  tit.  28,  c.  1,  sec.  6.  And  at  this 
day,  the  tenant  (says  Chief  Baron  Gilbert,)  does  the  corporal 
service  of  fealty ;  Gilb.  on  Rents,  9 :  and  therefore  it  is  still 
called  a  rentrservice,  because  it  hath  always  some  corporal  ser- 
vice incident  to  it,  which  at  the  least  is  fealty.  Gilb.  on  Distress, 
5;  1  Inst.  142,  a. 

The  rent  in  question  then  being  a  rent-service  and  not  a  rent- 
charge,  the  doctrine  contended  for,  as  well  as  the  authorities 
cited  by  the  plaintiffs  counsel  on  the  argument,  showing  what  in 
law  will  amount  to  an  extinguishment  of  the  whole  rent,  where  it 
is  a  rent-charge,  and  that  it  is  not  in  its  nature  apportionable  by 
the  act  of  the  parties,  will  be  found  to  be  wholly  inapplicable  to 
a  rent-service.  A  rent-charge  was  considered  repugnant  to  the 
principles  of  the  feudal  policy,  inasmuch  as  it  created  an  incum- 
brance  upon  the  land  of  the  tenant,  and  rendered  him  the  less 
able  to  perform  the  services  incident  to  his  tenure ;  and  being 
looked  on  as  against  common  right,  the  law  did  not  attach  the 
remedy  by  distress  for  its  recovery  when  in  arrear,  so  that  it  is 
only  given  by  virtue  of  the  clause  to  that  effect  in  the  deed  creating 
it.  Gilb.  on  Rents,  155 ;  Littleton,  sec.  217 ;  3  Cruise  Dig.  tit. 
28,  Rents,  ch.  l,sec.  9.  In  short  it  was  regarded  with  disfavor 
by  the  law,  and  any  act  therefore  on  the  part  of  the  owner  of  it, 
which  could  in  any  way  be  construed  to  be  incompatible  with  the 
future  assertion  of  right  to  the  same,  was  held  to  amount  to  a 
release  or  an  extinguishment  of  it,  without  regard  to  the  inten- 
tion: as  for  instance,  if  he  purchased  or  released  a  part  of  the 
land  from  the  rent,  upon  which  it  was  charged ;  this  was  held  to 
be  an  entire  extinguishment  of  his  right  to  the  whole  rent ;  Lit- 
tleton, sec.  222  ;  1  Inst.  147,  (6  ;)  Gilb.  on  Rents,  152  ;  18  Vin. 
Abr.  504;  Bro.  tit.  Apportionment,  pi.  17  ;  3  Cruise  Dig.  tit.  28, 
Rents,  ch.  3,  s.  13,  16.  But  a  rent-service  being  given  as  a  com- 
pensation for  the  services  to  which  the  land  was  originally  liable 
under  the  feudal  system  (3  Cruise  Dig.  tit.  28,  ch.  1,  sec.  6,) 
must  therefore  be  judged  of  by  the  rules  which  regulated  the 
performance  of  those  services.  Accordingly  Littleton  lays  it 
down  expressly  in  section  222,  "  if  a  man  which  hath  a  rent- 
scrvice,  purchase  parcel  of  the  land  out  of  which  the  rent  is  issu- 
ing, this  shall  not  extinguish  all,  but  for  parcel ;  for  a  rent-service 


1836.]  OF  PENNSYLVANIA.  353 

(Ingersoll  v.  Sergeant. ) 

in  such  case  *may  be  apportioned  according  to  the  value  r*qcq-i 
of  the  land."  If  the  rent,  however,  in  such  case  should  be  "- 
indivisible,  as  if  it  consist  of  a  horse,  hawk,  &c.,  it  Avould  be  taken 
away  ;  Bruerton's  case,  (6  Co.  1,  b ;)  Co.  Litt.  149,  a;  8  Co. 
155,  a ;  Mo.  203  ;  Gilb.  on  Rents,  151,  165.  So  if  the  lord 
purchase  a  part  of  the  tenancy  in  fee,  a  proportional  part  only 
of  the  rent  becomes  extinct,  and  the  residue  will  continue  in  esse, 
because  of  the  enjoyment  of  the  remaining  part  of  the  land  by  the 
tenant,  which  is  the  consideration  for  the  payment  of  the  rent. 
AscougKs  case,  (9  Co.  135  ;  Co.  Litt.  148,  6.)  Lord  Hale, 
Chief  Justice,  in  Hodykins  v.  Robson,  (1  Ventr.  276,)  may  pos- 
sibly be  thought  to  go  still  further,  when  he  lays  it  down  that  if 
a  lessee  assign  part  of  the  land  which  he  holds  on  lease,  to  'a 
stranger  without  reserving  any  rent,  and  the  stranger  assigns  it 
to  the  lessor,  there  shall  be  no  apportionment  or  suspension  of 
any  part  of  the  rent,  because  the  tenant,  by  assigning  part,  made 
himself  answerable  for  the  whole  rent ;  and  the  lessor  claiming 
under  a  stranger,  is  entitled  to  the  benefit  of  his  contract.  This 
proposition  is  also  repeated  with  seeming  approbation,  by  Lord 
Chief  Justice  Baron  Gilbert,  in  his  treatise  on  Rents,  181.  The 
reason  of  the  difference  mentioned  between  rent-charge  and  rent- 
service,  is  stated  by  Lord  Chief  Baron  Gilbert  to  be  this  :  In 
case  of  rent-service,  the  tenant  is  under  the  obligation  of  the  oath 
of  fealty,  to  bear  faith  to  his  lord,  and  to  perform  the  services 
for  the  land  which  he  holds  of  him  ;  and  this  obligation  has  its 
force,  while  the  tenure  of  the  lord  continues  ;  and  the  tenure 
could  not  be  discharged  by  purchase  of  part  of  the  tenancy  ;  for 
that  construction  would  not  only  be  attended  with  this  absurdity, 
that  the  part,  remaining  in  the  tenant's  hands,  would  be  held  of 
nobody,  and  in  consequence  would  produce  this  public  incon- 
veniency,  that  the  remainder  of  the  tenancy  would  be  free  of  all 
feudal  duties  ;  which  in  the  height  of  the  feudal  tenures,  must 
have  been  a  detriment  to  the  public  :  wherefore,  since  for  this 
reason,  the  tenure  between  the  lord  and  the  tenant,  continued  for 
so  much  of  the  land  as  remained  unpurchased,  the  tenant,  by  his 
oath  of  fealty,  was  obliged  to  perform  the  services  of  it.  But 
as  it  would  have  been  unreasonable  to  have  compelled  him  to 
perform  the  whole  services  that  were  reserved  upon  the  old  dona- 
tion, when  the  lord  had  wilfully  resumed  part  of  the  land,  which 
was  the  consideration  upon  which  the  obligation  to  make  the 
annual  return  of  services  was  founded,  the  medium  between 
the  two  extremes  was  adopted ;  that  as  the  enjoyment  of  the  land 
was  the  consideration  for  the  services,  the  return  ought  always 
to  be  made  according  to  the  proportion  of  the  land,  which  the 
tenant  continued  in  the  possession  and  enjoyment  of.  But  in 
the  case  of  a  rent-charge,  when  the  grantee  purchases  parcel  of 


353  SUPREME  COURT  [March  Term, 

(Ingereoll  c.  Sergeant.) 

the  land,  the  whole  rent  is  extinguished,  because  there  is  no  feudal 
dependency  between  the  grantor  and  the  grantee  by  the  deed  of 
grant,  which  created  the  rent-charge,  as  there  was  by  the  feudal 
r^qc  in  donation  which  created  the  rent-service.  *And  there- 
-•  fore  as  these  grants  were  of  no  benefit  to  the  public, 
and  afforded  no  addition  of  strength  or  protection  to  the  kingdom, 
the  law  carries  them  into  execution,  only  so  far  as  the  rent  could 
take  effect,  according  to  the  original  intention  of  it ;  and  therefore 
if  the  grantee  had  wilfully,  by  his  own  act  prevented  the  opera- 
tion of  the  grant  according  to  the  original  intention  of  it,  the  whole 
grant  was  to  determine.  And  as  a  rent-charge  issues  out  of  every 
part  of  the  land,  and  consequently  every  part  of  the  land  is  sub- 
ject to  a  distress  for  the  whole  rent,  therefore  when  the  grantee 
purchases  part  of  the  land,  it  is  become  impossible  by  his  own  act, 
that  the  grant  should  operate  in  that  manner,  because  it  is  absurd, 
that  the  grantee  should  distrain  his  own  lands,  or  bring  an  assize 
against  himself.  Gilbert  on  Rents,  152-3-4  ;  3  Cruise  Dig.  tit. 
28,  Rents,  ch.  3,  sec.  14. 

But  rent-service  being  something  given  by  way  of  retribution, 
to  the  landlord,  for  the  land  demised  by  him  to  the  tenant ;  and 
the  obligation  of  the  latter  to  pay  the  rent  arising  from  his  hav- 
ing enjoyed  the  land  under  a  contract  with  his  landlord,  it  is 
reasonable  that  the  extent  of  his  obligation  to  pay  should  be  regu- 
lated by  the  extent  of  his  enjoyment ;  and  therefore  it  is  that  if 
he  be  legally  deprived  of  the  enjoyment  of  part  of  the  land  de- 
mised, he  shall  be  released  from  the  rent  only  in  proportion  to  the 
value  of  the  land  evicted.  And  in  no  case  will  an  eviction  of  part 
of  the  demised  premises,  where  the  tenant  continues  to  enjoy  the 
residue  thereof,  discharge  him  from  the  payment  of  the  whole 
rent,  unless  it  be  by  the  tortious  act  of  the  landlord  himself,  who 
shall  forfeit  all  right  to  receive  it  in  such  case,  as  long  as  he  pre- 
vents the  tenant  against  his  will,  from  occupying  and  enjoying  any 
part  of  the  land.  Gilb.  on  Rents,  147  ;  10  Co.  128,  a  ;  1  Roll. 
Abr.  235  ;  Dyer,  56  ;  Co.  Litt.  148,  b  ;  1  Ventr.  277  ;  Gilb.  on 
Rents,  178-9. 

Now  let  us  see  what  the  case  of  the  plaintiff  is,  and  how  far 
these  principles  are  applicable  to  it.  Mr.  Ingersoll,  the  plain- 
tiff, being  the  tenant  of  a  certain  quantity  of  ground,  subject  to 
the  payment  of  a  rent-service  or  ground-rent,  on  the  3Uth  of 
April,  1819,  conveyed  a  part  thereof  in  fee  to  Mr.  Smith,  in 
consideration  of  $2500  paid  to  him  :  thus  making  a  division  of 
the  ground  by  an  act  of  his  own  ;  and  on  the  day  following,  Mr. 
Sergeant,  who  .was  then  invested  with  the  legal  title  to  the 
ground-rent,  by  his  deed,  in  consideration  of  one  dollar,  released 
that  part  of  the  ground  conveyed  by  the  plaintiff  to  Mr.  Smith, 
from  the  rent.  This  being  the  state  of  the  case,  1  would  ask, 


1836.]  OF  PENNSYLVANIA.  354 

(Ingersoll  t>.  Sergeant.) 

how  can  the  release  produce  any  other  or  greater  effect  towards 
extinguishing  the  rent,  than  if  Mr.  Sergeant  had  purchased  the 
ground  himself  of  the  plaintiff,  that  Mr.  Smith  bought:  or  had 
afterwards,  instead  of  releasing  to  Mr.  Smith,  purchased  the 
ground  of  him?  I  cannot  conceive  how  it  is  possible  that  it 
should,  because  the  one  would  have  been  as  much  the  wilful  act 
of  Mr.  Sergeant  as  the  other;  and  would  have  produced  a  union 
of  the  right  to  the  rent,  and  of  the  right  to  that  portion  of  the 
ground,  *which  would  be  at  least  as  effectual  for  the  pur- 
pose  of  producing  an  extinguishment  of  the  rent,  as  a 
release  confined  in  its  terms  to  the  same  part  of  the  whole  ground 
could  be.  But  we  have  seen  that  such  a  purchase  would  only 
have  extinguished  so  much  of  the  rent  as  would  be  equal  to  the 
value  of  that  part  of  the  ground  so  purchased :  which  proves  that 
the  release  in  this  case  ought  only  at  most  to  be  considered  an 
extinguishment  of  so  much  of  the  rent  as  shall  be  equal  in  value 
to  the  ground  released  from  it.  In  principle  it  can  make  no  dif- 
ference, whether  the  rent  and  a  part  of  the  land,  out  of  which  it 
issues,  become  united  in  the  landlord  himself,  by  his  purchasing 
such  part  of  the  land,  or  in  the  owner  of  such  part  of  the  land 
by  the  landlord's  releasing  it  from  the  rent;  the  result  and  the 
effect  would  seem  to  be  the  same.  The  reasoning  of  the  Lord 
Chief  Baron  Gilbert  on  this  subject,  going  to  show  that  there 
ought  to  be  an  apportionment  of  the  rent,  is  not  only  satisfactory 
but  conclusive,  as  it  appears  to  me  when  he  says,  "  there  is  no 
color  or  reason  why  the  whole  rent  should  be  suspended,  when 
the  lord  or  lessor  takes  a  lease  of  part  of  the  land ;  because  here 
is  the  concurrence  of  the  tenant,  who,  by  his  own  act  and  con- 
sent, parts  with  so  much  of  the  land  as  is  re-demised,  and  thereby 
supersedes  the  former  contract,  as  to  such  part.  But  since  the 
obligation  to  pay  the  rent,  was-,  by  the  first  contract,  founded 
upon  the  consideration  of  the  tenant's  enjoying  the  land,  that 
obligation  must  still  continue  on  the  tenant,  so  far  as  it  is  not 
cancelled  or  revoked  by  any  subsequent  contract  between  the 
parties ;  and  consequently  the  whole  rent  shall  not  be  extin- 
guished by  such  re-demise,  but  the  tenant  shall  pay  rent  in  pro- 
portion to  the  land  he  enjoys :  because  the  obligation  of  the  first 
contract  must  subsist  so  far  as  the  tenant  enjoys  the  considera- 
tion which  first  engaged  him  in  such  obligation."  Gfilb.  on  Rents, 
170-180.  And  although  Mr.  Ingersoll,  the  plaintiff,  made  no 
contract  personally  with  Mr.  Sergeant  for  the  release,  yet  he  had 
previously  made  a  contract  by  which  he  disposed  of  that  part  of 
the  land  released  from  the  rent,  to  Mr.  Smith,  who  thereby  be- 
came the  assignee  of  Mr.  Ingersoll,  invested  with  his  rights  pro 
tanto ;  and  the  contract  made  by  Mr.  Sergeant  with  Mr.  Smith 
in  regard  to  it,  may  be  deemed  in  effect,  the  same  as  if  made  by 


355  SUPREME  COURT  [March  Term, 

(Ingersoll  v.  Sergeant.) 

and  with  the  express  consent  and  approbation  of  Mr.  Ingersoll 
himself,  who  by  his  deed  to  Mr.  Smith,  must  be  considered  as 
having  authorized  it.  And  had  Mr.  Ingersoll  sold  and  conveyed 
to  Mr.  Smith  his  portion  of  the  ground  in  fee  expressly  clear  of 
the  ground-rent,  then  according  to  the  opinion  of  Lord  Chief 
Justice  Hale,  already  cited  from  1  Ventr.  276,  which  I  take  to 
be  sound  law,  Mr.  Ingersoll  would  still  have  been  liable  to  be  dis- 
trained on  for  the  whole  rent,  notwithstanding  the  release.  And 
indeed  it  has  been  argued  by  the  counsel  for  the  defendant,  that 
the  recital  in  the  deed  of  conveyance  from  the  plaintiff'  to  Mr. 
Smith,  contains  a  covenant  on  his  part,  that  Mr.  Smith  and  those 
claiming  under  him,  should  hold  the  ground  thereby  conveyed, 
i-jtcotfi-i  *discharged  from  the  ground-rent;  or  at  least,  that  he 
-•  is  estopped  by  this  recital  from  denying  that  such  is  the 
legal  effect  of  his  conveyance  to  Mr.  Smith.  Without  undertak- 
ing to  examine  and  reconcile  all  the  judicial  authorities  in  regard 
to  the  effect  of  recitals  in  deeds,  a  task  possibly  not  easy  to  be 
performed,  it  will  be  sufficient  to  extract  the  principle,  which 
seems  to  be  established  by  the  authorities  cited  by  the  counsel 
for  the  defendant.  They,  as  it  appears  to  me,  only  go  to  show 
that  a  party  who  recites  a  particular  fact  or  agreement  in  his 
deed,  will  not  be  permitted  afterwards  to  deny  its  existence :  but 
if  the  recital  be  yeneral,  or  contain,  as  it  is  said,  a  generality 
merely,  he  will  not  be  estopped  by  it.  What  then  is  the  nature 
of  the  recital  in  the  present  case  ?  It  seems  rather  to  be  a  part 
of  the  description  of  the  ground  intended  to  be  conveyed :  or  an 
explanation  of  it,  with  a  view  to  fix  more  particularly  its  location 
and  connection  with  what  had  been  done  before.  The  words  of 
it  are,  "being  part  of  a  larger  lot  or  piece  of  ground,  which 
Joseph  Reed,  of,  &c.,  by  indenture  bearing  date  the  9th  day  of 
October,  1818,  granted  and  conveyed  unto  the  said  Charles  J. 
Ingersoll,  in  fee,  clear  of  all  liens  and  incumbrances  whatsoever." 
In  it  two  distinct  facts  may  be  said  to  be  affirmed.  First,  the 
existence  of  the  indenture  mentioned ;  second,  that  the  ground 
then  about  to  be  conveyed,  was  a  part  of  the  ground  conveyed  by 
the  indenture.  Either  of  these  facts  perhaps,  according  to  the 
authorities  cited,  the  plaintiff  would  not  be  at  liberty  to  deny ; 
but  it  is  perfectly  manifest,  that  the  second  is  the  only  one  that 
could  have  been  considered  at  all  material ;  because  as  to  the  ex- 
istence of  the  indenture,  it  was  present,  or  if  not,  was  on  record, 
open  alike  to  the  inspection  of  both  parties,  proving  its  own  exist- 
ence. But  the  fact  of  the  ground,  then  about  to  be  conveyed  to 
Mr.  Smith,  being  part  of  the  ground  conveyed  by  the  indenture 
to  the  plaintiff,  might  not  appear  satisfactorily,  by  merely  com- 
paring the  description  of  the  ground  given  in  the  deed,  which  the 
plaintiff  was  then  about  to  make,  with  the  description  of  the 


1836.]  OF  PENNSYLVANIA.  356 

(Ingersoll  v.  Sergeant.) 

ground  in  the  indenture,  conveying  it  to  him  without  such  asser- 
tion of  the  fact.  Whether  the  indenture  mentioned  in  the  recital, 
conveyed  the  ground  to  the  plaintiff  "  clear  of  all  liens  and  in- 
cumbrances  whatsoever,"  was  not  so  much  a  matter  of  fact  as  a 
question  of  law  to  be  determined  by  a  proper  construction  of  the 
indenture,  which,  as  it  was  upon  record,  Mr.  Smith  had  the  same 
opportunity  of  being  correctly  informed  in  regard  thereto,  that 
the  plaintiff  had,  and  must  be  presumed  to  have  decided  for  him- 
self. Caveat  emptor  is  the  maxim  in  such  case.  If  it  had  been 
the  intention  of  the  parties,  that  the  plaintiff  should  have  con- 
veyed to  Mr.  Smith,  clear  of  all  liens  and  incumbrances,  nothing 
could  have  been  more  easy,  than  to  have  inserted  in  the  deed,  a 
formal  and  express  declaration  or  covenant  to  that  effect ;  which 
certainly  ought  to  be  done  in  all  cases,  when  so  intended  by  the 
parties.  To  say  that  the  recital  shows  that  such  was  their 
*intention,  seems  not  to  comport  well  with  other  parts  r*q£7-j 
of  the  deed.  For  the  express  covenant  of  special  war-  L 
ranty  given  in  it  by  the  plaintiff  is  certainly  powerful,  if  not  con- 
clusive evidence  to  show,  in  the  absence  of  any  other  express 
covenant  on  his  part,  that  it  was  not  the  design  that  he  should  be 
bound  to  do  any  thing  beyond  what  Avas  fairly  embraced  within 
it ;  or  be  restrained  from  doing  any  thing  that  was  not  inconsist- 
ent with  it.  Besides  such  recital  as  in  the  present  case,  is  gen- 
erally the  work  of  the  scrivener,  made  from  the  muniments  of 
title,  placed  in  his  hands,  for  drawing  the  deed,  without  any  di- 
rection whatever  from  either  of  the  parties  to  introduce  it ;  and 
it  would  therefore  seem  unreasonable  to  give  it  the  effect  of  a 
covenant  not  intended  by  the  parties.  But  the  truth  of  the  re- 
cital in  question,  appears  to  me  to  be  sustained  by  what  would 
be  the  common  understanding  of  the  deed  of  conveyance  from 
Mr.  Reed  to  Mr.  Ingersoll.  Though  from  the  face  of  it,  it  is 
plain  that  the  ground  was  incumbered  with  the  ground-rent  when 
conveyed,  yet  as  the  habendum,  to  which  it  properly  belongs  to 
declare  the  nature  and  extent  of  the  estate  intended  to  be  con- 
veyed, gives  the  ground  to  Mr.  Ingersoll,  his  heirs  and  assigns, 
"  free  and  discharged  from  the  aforesaid  rent-charge,  liens  and  in- 
cumbrances whatsoever,"  it  would  generally  be  pronounced  a 
deed  conveying  the  ground  "  clear  of  all  liens  and  incumbrances 
whatsoever."  And  this  doubtless  was  the  understanding  of  the 
parties  at  the  time  of  its  execution ;  and,  if  so,  ought  most  cer- 
tainly to  be  so  construed. 

But  it  has  been  alleged  also  on  the  part  of  the  plaintiff,  that 
Mr.  Reed  was  the  owner  of  both  the  ground  and  the  rent,  and 
that  this  union  of  ownership  produced  an  extinguishment  of  the 
rent.  This  conclusion  would  be  correct  if  the  fact  was  only  so  ; 
but  he  never  was  invested  with  the  legal  title  to  the  rent.  And 
VOL.  i. — 24 


357  SUPREME  COURT  [March 

(Ingersoll  «.  Sergeant.) 

although  he  was  the  equitable  owner  of  it  by  having  bought  and 
paid  for  it,  yet  that  was  after  he  had  sold  and  conveyed  the 
ground  to  the  plaintiff,  so  that  had  he  taken  the  legal  title  for  the 
rent  to  himself  in  his  own  name,  instead  of  having  it  conveyed  to 
Mr.  Sergeant,  the  extinguishment  of  the  rent  could  not  have  been 
produced  by  the  mere  unity  of  the  two  estates  in  the  same  person. 
Again,  it  has  been  said  that  Mr.  Reed,  though  not  the  owner  of 
the  ground  at  the  time  he  became  the  equitable  owner  of  the  rent, 
yet  he  was  bound  by  his  covenant  with  the  plaintiff  to  extinguish 
it,  and  therefore  the  plaintiff  ought,  in  equity  at  least,  to  have 
the  benefit  of  the  purchase  of  the  rent,  and  to  have  it  considered 
as  extinguished.  But  this  would  be  to  set  aside  the  purchase  and 
the  right  of  Mrs.  Sergeant  the  defendant  contrary  to  a  well  set- 
tied  rule  of  law,  that  a  bona  Jide  purchaser  for  a  valuable  consid- 
eration of  the  legal  estate  from  a  trustee  without  notice  of  the 
equitable  right  or  claim  shall  be  protected.  This  rule  is  founded 
in  equity  as  well  as  law,  because  Mrs.  Sergeant,  or  her  agent, 
when  about  to  make  the  purchase  of  the  ground-rent  from  Mr. 
Sergeant,  seeing  that  he  was  invested  with  the  legal  title  to  it, 
r*qcQ-i  *was  not  bound  to  look  or  to  inquire  further,  and  even 
J  if  she  had  been  disposed  to  do  so,  she  had  no  means  of 
ascertaining  Mr.  Reed's  interest  or  concern  in  it ;  and  having 
under  these  circumstances  paid  a  full  price  for  it,  her  equity  to 
have  the  benefit  of  the  purchase  was  at  least  as  strong  as  that  of 
the  plaintiff,  and  having  got  the  legal  title  added  to  her  equity, 
she  is  clearly  entitled  to  a  preference.* 

It  has  also  been  contended,  that  the  extension  of  the  time  for 
redeeming  the  ground  from  the  charge  of  the  rent  was  an  extin- 
guishment of  it.  I  am  unable  to  perceive  how,  or  upon  what 
principle  this  can  be  so.  Even  as  between  the  plaintiff  and  Mr. 
Reed  this  act  would  not  seem  to  have  been  at  that  time  inconsist- 
ent with  the  letter  of  the  covenant,  at  least  on  the  part  of  the 
latter,  whatever  may  be  thought  of  its  spirit.  The  covenant  was 
only  to  extinguish  the  rent  within  the  time  then  allowed,  or  such 
further  time  as  might  be  obtained  for  that  purpose,  and  in  the 
mean  time  to  keep  the  plaintiff  harmless  and  indemnified  from  the 
rent ;  thus  evidently  contemplating  the  procurement  of  such  ex- 
tension of  the  time  for  extinguishing  the  rent,  if  it  should  be  prac- 
ticable, and  desired  by  Mr.  Reed.  But  suppose  it  had  been 
otherwise,  how  is  it  possible  that  it  could  affect  Mrs.  Sergeant's 
title  to  the  rent  ?  She  was  a  stranger  not  only  to  the  dealings 
between  the  plaintiff  and  Mr.  Reed,  but  was  without  any  knowl- 
edge whatever  of  the  claim  or  interest  that  the  latter  had  in  the 

•This  case  was  brought  before  the  Court  again  on  this  point,  and  re- 
versed, 7  Barr,  340 ;  3  Harris,  343. 


1836.]  OF  PENNSYLVANIA.  358 

(Ingersoll  «.  Sergeant.) 

rent,  or  of  his  obligation  to  the  former,  and  took  the  rent,  after 
having  paid  a  fair  price  for  it,  without  the  least  apparent  infirmity 
about  it ;  and  appears  to  have  quite  as  good  a  title  to  so  much  of 
the  rent  as  upon  a  proper  apportionment  thereof  shall  be  found 
to  be  equal  to  the  value  of  the  ground  retained  by  the  plaintiff, 
as  he  has  to  the  ground  itself. 

On  the  part  of  the  plaintiff,  this  case  has  also  been  compared 
to  that  of  a  debt  owing  by  two  partners  in  trade,  or  two  joint,  or 
joint  and  several  obligors,  where  a  release  given  to  one  by  the 
creditor,  will  for  ever  discharge  both.  The  law  as  to  these  cases 
is  certainly  so,  (Co.  Lit.  132,  a ;)  but  this  is  on  the  ground  of 
their  joint  liability  being  taken  away  or  destroyed  by  the  release 
of  the  creditor,  that  the  other  is  released,  as  well  as  the  one  to 
whom  the  release  is  executed ;  because  if  he  were  to  be  held  liable 
at  all  after  the  release,  it  could  only  be  severally,  which  would  be 
permitting  the  creditor  without  his  consent,  to  change  the  nature 
of  his  liability  from  that  of  a  joint,  or  joint  and  several  liability, 
into  a  several  liability  alone  :  in  short,  to  vary  and  change  the 
terms  of  the  contract.  But  in  regard  to  those  who  are  severally 
and  not  jointly  liable  for  the  payment  of  the  same  debt,  it  is 
obvious  this  cannot  be  the  effect  of  a  release  made  in  favor  of  one 
of  them  alone  ;  for  never  having  been  liable  otherwise  than  sever- 
ally, the  party  not  embraced  in  the  release,  cannot  be  said  to 
have  the  nature  of  his  liability  changed  'in  the  least  by  it ;  and 
therefore  it  is,  that  a  release  of  one  of  two  several  obligators  or 
covenantors,  will  not  release  the  other ;  see  Mathewson* s  case, 
(5  Co.  *23,  Cro.  Eliz.  408,  546.)  And  so  the  lia- 
bility  or  obligation  of  Mr.  Ingersoll  and  Mr.  Smith  to 
pay  the  rent,  whatever  it  was,  being  clearly  several  and  not  joint, 
the  release  could  not  change  the  nature  of  Mr.  Ingersoll's  lia- 
bility, nor  increase  the  extent  of  it.  But  if  it  should  be  thought 
that  the  analogy  is  rendered  more  close  to  the  case  of  joint  debt- 
ors by  considering  the  land  as  the  debtor  in  this  case  ;  it  is  suf- 
ficient to  observe  that  it  is  in  its  nature  divisible,  and  susceptible 
of  being  made  liable  separately  according  to  the  value  of  its  re- 
spective parts,  when  divided  by  the  act  of  the  parties ;  and  as  Mr. 
Ingersoll  was  the  first  himself  to  divide  it,  he  has  no  just  cause  to 
complain  or  to  object  now,  that  his  act  in  this  behalf  was  assented 
to  by  the  party  invested  with  the  legal  title  to  the  ground-rent  at 
the  time. 

The  case  of  one  of  several  vendees,  of  distinct  and  separate 
parts  of  a  lot  of  land,  subject  at  the  time  of  the  sale  thereof,  to 
the  payment  of  a  mortgage,  having  his  part  released  from  the 
mortgage  debt  by  the  mortgagee,  has  been  presented  by  the 
counsel  for  the  plaintiff  as  analogous  ;  and  it  has  been  argued 
that  the  act  of  assembly,  of  the  22d  of  April,  1822,  entitled  "A 


359  SUPREME  COURT  [March  Term, 

(Ingereoll  t>.  Sergeant.) 

supplement  to  an  Act,  entitled  '  An  Act  for  taking  land  in  execu- 
tion for  the  payment  of  debts,' "  shows  that  anterior  to  the  pass- 
age of  it,  such  release  would  have  been  a  release  of  the  whole 
debt.  In  this  particular,  however,  this  act  is  only  declaratory  of 
what  the  law  was  before,  and  was  so  considered  by  this  court  in 
Kulp  v.  JFisher,  (1  Watts,  494.)  See  also  Hicks  v.  Binyliam, 
(12  Mass.  Reps.  300  ;)  Crawford  v.  Crawford,  (2  Watts,  339.) 
But  in  addition  to  this  the  cases  do  not  appear  to  be  alike.  A 
debt  secured  by  a  mortgage  is  a  mere  chose  in  action,  entire  in 
its  nature,  founded  upon  a  past  consideration ;  whereas  the 
ground-rent  here  is  an  inheritable  estate  that  is  divisible  in  its 
nature  ;  and  the  rent  falling  due  annually,  may  be  said  to  be  the 
fruit  of  it,  which  becomes  payable  only  in  consideration  of  .the 
enjoyment  of  the  land,  which  is  also  divisible  in  its  nature,  under 
the  original  demise  or  conveyance  thereof,  reserving  the  rent.  It 
is  true  however  as  Lord  Chief  Baron  Gilbert,  says,  Gilb.  on 
Rents,  172,  that  formerly  it  was  doubted  whether  a  rent  service 
incident  to  the  reversion  could  be  apportioned  by  a  grant  of  part 
of  the  reversion,  and  whether  the  whole  rent  would  not  in  such 
case  become  extinct ;  as  the  reversion  and  rent  incident  thereto 
were  entire  in  their  creation,  it  seemed  to  be  thought  hard  by 
some  that  they  should  be  divided  by  the  act  of  the  landlord,  and 
the  tenant  thereby  be  made  liable  to  several  actions  and  dis- 
tresses for  the  recovery  of  the  rent.  The  case  however,  before 
us,  can  scarcely  be  said  to  be  liable  to  this  objection,  because  the 
first  division  was  by  the  act  of  the  tenant,  in  selling  and  convey- 
ing to  Mr.  Smith  a  part  of  the  ground.  But  still  this  doubt  did 
not  remain  long,  because  as  the  Chief  Baron  says,  it  "  was  too 
narrow  and  absurd  to  govern  men's  property  long  ;  for  if  I  make 
a  lease  of  three  acres,  reserving  three  shillings  rent,  as  I  may 
rjcqpn-i  *dispose  of  the  whole  reversion,  so  may  I  also  of  any 
-1  part  of  it,  since  it  is  a  thing  in  its  nature  severable  ;  and 
the  rent  as  incident  to  the  reversion,  may  be  divided  too,  because 
that  being  made  in  retribution  for  the  land,  ought,  from  the  na- 
ture of  it,  to  be  paid  to  those  who  are  to  have  the  land  on  the 
expiration  of  the  lease  ;"  this  reasoning  is  strikingly  forcible  to 
prove,  that  where  the  whole  of  the  ground-rent  in  fee  is  still 
owned  by  one  person,  but  the  land  upon  which  it  was  reserved 
has  been  divided  and  conveyed  away  by  the  tenant  in  several 
parcels,  to  as  many  different  persons,  the  rent  may,  as  it  becomes* 
payable,  be  apportioned  among  them,  according  to  the  value  of 
their  respective  portions  of  the  whole  land,  and  they  be  thus 
compelled  to  pay  it.  To  this  course  there  does  not  appear  to  be 
even  the  shadow  of  an  objection.  For  in  the  case  of  a  rent  inci- 
dent to  a  reversion,  where  the  reversion  has  been  divided  and  sold 
in  separate  parcels  to  different  vendees,  who  claim  to  have  the 


1836.]  OF  PENNSYLVANIA.  360 

(Ingersoll  v.  Sergeant.) 

rent  paid  to  them  in  a  corresponding  ratio,  with  their  respective 
portions  of  the  reversion,  each  is  entitled  to  sue  or  to  distrain  for 
his  portion,  if  not  paid ;  and  it  is  said  that  the  tenant  receives 
no  prejudice  thereby,  and  has  no  just  cause  of  complaint,  "be- 
cause it  is  in  his  power,  and  it  is  his  duty,  to  prevent  the  several 
suits  and  distresses,  by  a  punctual  payment  of  the  rent,"  Gilbert 
on  Rents,  173;  3  Kent's  Com.  375,  6,  First  ed.  And  yet 
there  is  certainly  much  more  color  for  complaint  on  the  part  of 
the  tenant  in  this  last  case,  than  in  the  case  before  us,  or  the  one 
previously  mentioned.  It  may  be  further  observed  that  the 
ground-rents  are  a  species  of  inheritable  estates,  that  has  increased 
greatly  of  late,  within  the  city  and  county  of  Philadelphia,  as 
also  in  some  other  parts  of  the  State,  and  that  the  public  have 
an  interest  in  placing  them  on  the  same  footing,  as  nearly  as 
practicable  with  other  estates,  so  as  to  make  them  answer  the 
common  exigencies  of  their  respective  owners.  Unless  then  they 
can  be  apportioned,  it  is  evident  that  they  must  fall  very  short 
of  being  made  the  means  of  supplying  the  necessaries  and  com- 
forts of  mankind.  It  may  become  necessary  for  the  owner  of  a 
ground-rent  estate,  to  divide  it  among  his  children,  or  to  sell  a 
part  of  it,  to  answer  the  exigencies  of  his  family ;  but  if  he  cannot 
sell  and  release  a  part  of  it  to  an  owner  of  part  of  the  ground 
upon  which  it  was  originally  reserved,  without  extinguishing  the 
whole  rent,  it  is  apparent  that  the  value  of  both  estates  must  be 
diminished,  because  it  will  prevent  the  one  from  ever  buying  of 
the  other  in  such  case,  though  otherwise  it  might  be  his  interest 
to  give  more  for  the  purchase  than  anybody  else  would  do.  Such 
a  restriction  is  not  to  be  tolerated  where  the  policy  of  the  law  is 
to  afford  every  possible  facility  to  the  change  of  ownership  in 
property,  according  to  the  will  of  the  holders  thereof. 

I  have  now  presented  my  views  in  regard  to  the  questions  in- 
volved in  this  case ;  and  the  reasons  which  have  determined  me 
in  coming  to  the  decision  adopted  by  the  court,  to  wit,  that  the 
release  is  only  an  extinguishment  of  so  much  of  the  rent  as  may 


be  equal  to  *the  comparative  value  of  the  ground  bought 
by  Mr.  Smith  of  the  plaintiff,  at  the  time  of  the  sale 


[*361] 


thereof;  and  that  the  defendant  is  entitled  to  recover  the  residue 
of  the  rent  due  at  the  time  of  the  distress.  This  apportionment 
however,  can  only  be  made  by  a  jury,  Hodgkins  v.  Robson,  (1 
Ventr..276,  s.  c.  Pollex.  141;)  Fish  v.  Campion,  (1  Roll.  Abr. 
237,)  and  as  the  verdict  found  by  the  jury  does  not  provide  for 
it,  the  matter  will  have  to  be  submitted  to  another  jury,  unless 
the  parties  will  agree  to  take  the  price  mentioned  in  the  deed 
from  Mr.  Reed  to  Mr.  Ingersoll,  as  the  value  of  the  whole  of  the 
ground  subject  to  the  ground-rent,  at  the  time  the  release  was 
given,  and  the  price  mentioned  in  the  deed  from  Mr.  Ingersoll  to 


361  SUPREME  COURT  [JfarcA  Term, 

(Delamater's  Estate.) 

Mr.  Smith,  as  the  value  of  the  part  released  from  the  rent.  If 
this  be  agreed  to,  the  whole  case  can  be  settled  now ;  otherwise 
the  verdict  must  be  set  aside,  and  a 

Venire  de  novo  awarded. 

SERGEANT,  J.  took  no  part  in  the  decision  of  this  cause,  being 
related  to  the  defendant. 

Cited  by  Counsel,  5  Wharton,  62,  528 ;  9  Watts,  262 ;  8  Watts  &  Ser- 
geant, 116,  381;  2  Barr,  170;  4  Id.  88;  7  Id.  843;  8  Id.  266;  1  Harris, 
255 ;  6  Id.  212 ;  8  Id.  203 ;  10  Id.  87 ;  8  Wright,  41 ;  4  P.  F.  Smith,  303 ;  7 
Id.  104 ;  1  Grant,  404. 

Cited  by  the  Court,  3  Wharton,  364 ;  8  Watts  &  Sergeant,  185  ;  7  Barr, 
194 ;  10  Id.  123,  283 ;  8  Wright,  495 ;  2  P.  F.  Smith,  44 ;  2  Grant,  245. 

See  also  4  Watts,  116. 


[*362]  ['PHILADELPHIA,  APRIL  4,  1836.] 

DELAMATER'S  ESTATE. 

APPEAL. 

1.  A  testator  after  several  legacies  of  bank  stock  and  other  stock  and 
money,  concluded  his  will  as  follows  :  "The  remainder  of  my  worldly 
substance,  consisting  of  furniture,  bedding,  carpets,  china,  kitchen  fur- 

.  niture,  looking-glasses,  and  crockery,  &c.,  &c.  I  give  to  my  two  daugh- 
ters to  be  divided  between  them,  part  of  whicty  they  are  at  liberty  to  sell, 
if  they  shall  not  need  them.  These  with  all  money  of  mine  that  may 
remain  in  bank  at  the  time  of  my  death,  with  all  claims  or  demands  of 
whatever  nature,  I  give  to  my  two  daughters,  hoping  that  they  may  live 
to  enjoy  much  contentment  and  happiness."  The  testator  had  several 
shares  of  bank  stock  and  other  stock,  not  specifically  bequeathed  :  Held, 
that  they  did  not  pass  under  the  above  bequest. 

2.  A  testator  having  two  daughters,  A.  and  B.  and  no  other  children  ;  and 
having  certain  shares  of  bank  stock,  bequeathed  one-half  of  the  number 
of  shares  to  his  daughter  A.  who  was  at  that  time  unmarried  ;  but  said 
nothing  respecting  the  remaining  shares.     He  gave  several  legacies  of 
other  stocks  and  effects  to  A.  and  B.,  and  appointed  his  nephew  C.,  his 
son-in-law  D.  (husband  of  B.)  and  his  two  daughters  A.  and  B.  to  be 
executors.   About  a  month  after  the  probate  of  the  will,  A.  by  an  instru- 
ment (not  actually  sealed)  reciting  that  the  omitted  shares  were  believed 
to  have  been  intended  by  her  father  for  her  sister  B.,  granted,  assigned, 
&c.  the  said  shares  to  B.  for  her  sole  and  absolute  property,  and  re- 
quested the  executors  of  her  father  to  transfer  them  to  her.     The  shares 
were  accordingly  transferred  by  the  executors  to  B. ;  and  in  the  settle- 
ment of  their  accounts,  they  claimed  credit  for  such  transfer.    Held,  on 
exception  to  such  credit,  that  in  the  absence  of  evidence  of  mistake  or 
direct  fraud  or  imposition,  there  was  nothing  in  the  relation  in  which  C., 
the  executor,  or  his  wife  B.  stood  towards  A.,  to  require  the  Court  to 
rescind  the  assignment  and  transfer. 


1836.]  OF  PENNSYLVANIA.  302 

(Delamater's  Estate.) 

THIS  was  an  appeal  from  a  decree  of  the  Orphans'  Court  for 
the  County  of  Philadelphia,  in  the  matter  of  the  accounts  of  M. 
W.  Pike  and  Jacob  Dunton,  executors  of  the  will  of  John  Dela- 
mater,  deceased. 

The  circumstances  which  gave  rise  to  the  only  question  in  con- 
troversy in  this  case,  are  as  follows : — 

John  Delamater  of  the  City  of  Philadelphia,  died  about  the 
10th  of  December,  1829,  leaving  two  children  only,  viz.  Ann, 
and  Caroline,  the  wife  of  Jacob  Dunton ;  and  leaving  also  a  will 
dated  the  25th  of  July,  1829,  which  it  is  deemed  necessary  to 
insert  entire,  as  follows  : — 

"  The  last  Will  and  Testament  of  John  Delamater,  taken  by 
himself,  viz: 

In  the  name  of  God,  amen.  I,  John  Delamater,  formerly  of 
the  City  of  New  York,  now  of  the  City  of  Philadelphia,  in  the 
State  of  Pennsylvania,  being  in  good  health  and  sound  disposing 
memory  and  certainty  of  death,  Do  make  and  publish  my  last 
Will  and  Testament  in  manner  and  form  following,  to  say, 

*  First.  I  do  order  that  all  my  just  debts  and  funeral  r*q£o-i 
charges  be  paid. 

Item.  My  will  is  that  my  small  farm  at  White  Plains,  West 
Chester  County,  in  the  state  of  New  York,  if  not  sold  during  my 
life,  shall  be  sold  soon  after  my  death  by  my  executors  hereinafter 
named,  for  the  greatest  and  best  price  that  can  or  may  reason- 
ably be  had  or  gotton  for  the  same ;  and  they  my  said  executors, 
to  the  purchaser  or  purchasers  thereof,  his,  her  or  their  heirs  and 
assigns  forever,  a  good  and  sufficient  deed  or  deeds  of  conveyance 
in  fee  simple,  deducting  the  cost  and  expenses  attending  the  said 
sale,  and  sign  the  said  deed  or  deeds,  if  required,  (free  from  every 
incumb  ranee.) 

Item.  I  give  to  my  niece,  widow  Nancy  Purdy,  the  amount  of 
one-third  of  the  whole  amount  of  the  sales  of  the  White  Plains 
farm,  be  it  more  or  less,  viz.:  One-third  of  the  whole  amount  of 
sales  to  my  niece,  Jennett  Pike,  be  it  more  or  less  ;  and  one-third 
of  the  whole  amount  of  the  sales  of  the  White  Plains  farm  to  my 
nephew,  Marinus  W.  Pike,  be  the  same  more  or  less. 

And  in  addition  to  the  aforesaid  legacies,  I  give  and  bequeath 
to  my  niece,  widow  Nancy  Purdy,  four  shares  of  the  capital  stock 
in  the  Manhattan  Bank,  New  York,  with  their  advances  and  divi- 
dends due  thereon  at  the  time  of  my  death ;  the  subscription  to 
this  Bank  is  fifty  dollars  per  share. 

And  to  my  niece,  Jennett  Pike,  in  addition  to  her  former 
legacy,  one  share  in  the  capital  stock  of  the  Bank  of  New  York, 
subscription  five  hundred  dollars  per  share,  with  its  advances  and 
dividends  that  may  be  due  thereon. 

And  to  my  nephew,  Marinus  W.  Pike,  in  addition  to  his  former 


363  SUPREME  COURT.  [March  Term, 

(Delamater' s  Estate.) 

legacy,  four  shares  in  the  capital  stock  of  the  Manhattan  Bank, 
New  York,  subscription  fifty  dollars  per  share,  with  their  advances 
and  dividends. 

The  stock  on  the  farm  at  White  Plains  is  to  be  considered  as 
the  property  of  Jennett  Pike,  with  every  other  article  of  mine  at 
the  Plains,  is  to  be  considered  as  her  property. 

If  the  White  Plains  property  is  sold  previous  to  my  death,  it  is 
my  intention  of  making  the  same  distribution  of  the  amount  of 
sales  that  will  be  done  if  sold  after  my  death :  and  if  either  of 
my  nieces  should  die  previous  to  my  death,  my  will  is  that  their 
proportion  shall  be  equally  divided  among  their  children  or  their 
nearest  kindred.  I  trust  that  my  executors  will .  aid  and  assist 
my  two  nieces  in  putting  out  their  little  money  that  it  may  prove 
productive. 

Item.  I  give  to  James  S.  Caldwell,  in  trust  for  my  grandson, 
Lewis  John  Caldwell,  four  shares  in  the  capital  stock  of  the  New 
York  Manhattan  Bank,  with  their  advances  and  dividends.  If 
Lewis  should  die  in  a  state  of  infancy,  then  those  four  bank  shares 
are  to  become  the  property  of  his  sister,  Eliza  G.  Caldwell. 

Item.  I  give  to  my  son-in-law,  Jacob  Dunton,  in  trust  for  my 
grandson,  Edward  T.  Dunton,  four  shares  in  the  New  York  Man- 
I"*3fi41  hattan  *Bank,  with  their  advances  and  dividends:  and 
J  if  the  aforesaid  Edward  T.  Dunton  should  die  in  a  state 
of  infancy,  then  the  four  bank  shares  is  to  be  considered  the  pro- 
perty of  his  brother  Albert  Dunton. 

Item.  I  give  to  my  kinswoman,  Mrs.  Mary  Wood,  the  sum  of 
fifty  dollars,  if  she  should  be  living  at  my  death. 

Item.  I  give  to  my  hired  woman  Nancy  McNeill,  the  sum  of 
fifty  dollars,  if  she  should  be  living  in  my  family  at  the  time  of 
my  death.  These  legacies  are  to  be  paid  soon  after  my  death  out 
of  any  loose  money  of  mine  that  may  remain  in  bank,  or  may  come 
in  after  my  death. 

Item.  I  give  and  bequeath  to  my  dear  daughter  Ann  Delama- 
ter,  her  heirs,  administrators,  or  assigns  and  executors,  my  house 
and  lot  on  the  west  side  of  Delaware  Eighth  Street,  Philadelphia, 
situate  between  Mulberry  and  Cherry  Streets,  free  of  every  in- 
cumbrance ;  (she  has  continued  with  me  until  the  present  time 
and  shared  with  me  in  my  many  troubles) — taxes  to  be  paid  by 
her. 

Item.  I  give  to  my  aforesaid  daughter,  Ann  Delamater,  one 
eq\ial  moiety  of  my  house  and  lot  in  Fulton  Street,  New  York, 
(free  from  every  incumbrance,)  the  other  moiety  is  to  be  consid- 
ered as  the  property  of  her  sister,  Caroline  Dunton,  their  respect- 
ive heirs,  administrators  and  assigns,  (share  and  share  alike,)  as 
tenants  in  common,  and  not  as  joint  tenants. 

Item.     I  give  and  bequeath  to  my  daughter,  Ann  Delamater, 


1836.]  OF  PENNSYLVANIA.  364 

(Delamater's  Estate.) 

one  Springsbury  lot  of  ground,  and  to  her  heirs,  executors, 
administrators  and  assigns,  situate  corner  Schuylkill  Third  and 
Hamilton  Streets,  (directly  opposite  James  Caldwell's  house,)  one 
hundred  and  twenty-five  feet  in  Hamilton  Street,  along  Third  Street 
to  the  Canal,  125  feet  on  the  rear. 

Item.  I  give  to  my  daughter  Ann  Delamater,  forty  shares  in 
the  Bank  of  the  United  States,  with  their  advances  and  dividends, 
(subscriptions  to  this  bank  one  hundred  dollars  per  share  ;)  like- 
wise three  shares  in  the  capital  stock  of  the  Bank  of  Pennsylvania, 
with  their  advances  and  dividends — subscription  to  this  stock  four 
hundred  dollars  per  share. 

Item.  I  further  give  to  my  aforesaid  daughter  Ann  ten  shares 
in  the  Germantown  and  Perkiomen  Turnpike  Co. — subscription  to 
this  stock  one  hundred  dollars  per  share — (it  is  now  under  par.) 
Likewise  thirty-five  shares  in  the  Market  Street  Permanent 
Bridge  Co. — subscription  to  this  stock  is  ten  dollars  per  share : 
whole  amount  of  subscription  three  hundred  and  fifty  dollars. 
(My  wish  is  that  none  of  the  above  mentioned  stock  should  be 
parted  with,  but  content. with  the  dividends  as  they  may  grow 
due.) 

To  my  daughter,  Ann  Delamater,  I  give  my  large  folio  family 
Bible,  my  own  portrait,  and  all  other  pictures  in  the  back  par- 
lor, and  all  my  plate  and  plated  waie,  of  too  insignificant  value 
to  be  divided,  (with  every  other  article  she  may  claim  as  her 
property.) 

*Item.  I  give  and  bequeath  to  my  dear  daughter 
Caroline  Dunton,  wife  of  Jacob  Dunton,  Jr.,  her  heirs, 
executors  and  assigns  for  ever,  one  moiety  of  my  house  and  lot 
of  ground  in  Fulton  Street,  New  York,  with  her  sister,  Ann 
Delamater,  share  and  share  alike,  free  from  every  incumbrance, 
as  tenants  in  common,  and  not  as  joint  tenants.  (This  property 
is  under  rent  to  Nathaniel  Bunce,  at  600  dollars  per  annum.) 
The  taxes  must  be  paid  regular. 

Item.  I  likewise  give  to  my  aforesaid  daughter,  Caroline  Dun- 
ton,  one  certificate  of  the  debt  of  the  United  States,  amount  one 
thousand  dollars,  interest  4J  per  cent,  paid  quarterly  at  the 
United  States  Bank — the  principal  of  this  debt  will  be  paid  off  in 
a  few  years. 

To  my  aforesaid  daughter,  her  heirs,  executors  and  assigns, 
one  Springsbury  lot  of  ground,  situate  corner  of  Schuylkill  Fourth 
Street  and  Hamilton  Street,  125  feet  on  Hamilton  Street,  and  runs 
down  Fourth  Street  midway,  and  back  on  James  Caldwell's  lot  of 
the  same  width.  Taxes  must  be  paid  annually  on  this  lot.  This 
lot  will  be  valuable  in  time. 

I  give  to  my  daughter,  Caroline  Dunton,  sixteen  shares  in  the 
Frankford  and  Bristol  Turnpike  Co. — -cost  of  subscription  one 


365  SUPREME  COURT  [March  Term, 

(Delamater's  Estate.) 

hundred  dollars  per  share.     This  stock  is  under  par.     Dividend 
declared  early  in  May  and  November. 

Item.  I  give  to  my  daughter,  Caroline  Dunton,  in  trust  for  her 
son  Edward  T.  Dunton,  my  gold  watch,  &c.  &c.  to  be  given  to 
him  when  he  is  of  age  to  take  care  of  it.  If  he  should  die  in  in- 
fancy, it  is  to  be  the  property  of  his  brother,  Albert  Dunton. 

Item.  I  give  to  my  daughter,  Caroline  Dunton,  all  my  wear- 
ing apparel  of  every  description,  both  linen  and  woollen,  &c.  &c. 
(I  should  wish  of  my  clothing  sold  they  may  be  of  service  to  her 
children.)  I  likewise  give  her  my  second  size  family  Bible,  it 
contains  the  family  register.  I  likewise  give  her  the  large  por- 
trait of  Gen.  Washington,  with  all  the  pictures  belonging  to  me  in 
the  back  parlor,  the  old  family  clock,  of  but  little  value  but  as  an 
ornament. 

Item.  I  give  to  my  daughters,  Ann  and  Caroline,  my  family 
pew  in  the  south  gallery  of  the  Second  Presbyterian  Church, 
Arch  street ;  this  pew  cost  110  dollars ;  the  pew  rent  paid  half 
yearly,  at  sixteen  dollars  per  annum. 

Item.  My  will  is  that  my  executors  hereafter  named,  pay  or 
cause  to  be  paid  to  each  of  my  nieces,  widow  Nancy  Purdy  and 
Jennett  Pike,  soon  after  my  death,  out  of  any  money  of  mine  that 
may  be  in  bank,  to  each  the  sum  of  twenty-five  dollars,  taking  a 
receipt  for  the  same. 

The  remainder  of  my  worldly  substance,  consisting  of  furni- 
ture, bedding,  carpet,  china,  kitchen  furniture,  looking-glasses, 
and  crockery,  &c.  &c.,  I  give  to  my  two  daughters,  Ann  Delama- 
ter  and  Caroline  Dunton,  to  be  divided  between  them,  part  of 
which  they  are  at  liberty  to  sell  if  they  should  not  need  them. 
These  with  all  moneys  of  mine  that  may  remain  in  bank  at  the 
^me  °^  my  death,  w^h.  all  *claims  or  demands  of  what- 
ever  nature,  I  give  to  my  two  daughters,  Ann  and  Caro- 
line, hoping  that  they  may  live  to  enjoy  much  contentment  and 
happiness. 

The  property  bequeathed  to  my  heirs  is,  to  them,  their  heirs, 
executors,  administrators,  or  assigns  for  ever,  free  of  all  incum- 
brances. 

And  lastly,  I  do  nominate  and  appoint  my  nephew,  Marinus  W. 
Pike,  my  son-in-law,  Jacob  Dunton,  Jr.,  to  be  executors,  and  my 
two  daughters,  Ann  Delamater  and  Caroline  Dunton,  executrixes 
of  this  my  last  will  and  testament,  hereby  revoking  all  others  by 
me  at  any  time  heretofore  made.  I  do  declare  this  only  to  contain 
my  last  will  and  testament." 

The  will  was  proved  on  the  14th  of  December,  1829,  and  let- 
ters testamentary  were  granted  on  the  same  day  to  the  two  execu- 
tors, Dunton  and  Pike. 

At  the  date  of  this  will  and  at  the  period  of  the  death  of  the 


1836.]  OF  PENNSYLVANIA.  366 

(Delamater's  Estate.) 

testator,  he  was  possessed  of  the  following  stock,  which  was  not 
mentioned  in  the  will,  viz. 

40  Shares  in  the  Bank  of  the  United  States. 
3  Shares  in  the  Bank  of  Pennsylvania. 

22  Shares  in  the  Manhattan  Bank  of  New  York ; 
with  respect  to  which,  he  of  course  died  intestate,  unless  they  are 
to  be  considered  as  passing  under  the  residuary  clause  of  the 
will. 

On  the  18th  of  January,  1830,  Ann  Delamater,  executed  the 
following  instrument : 

"  Know  all  men  by  these  Presents,  That  I,  Ann  Delamater,  of 
the  City  of  Philadelphia,  one  of  the  daughters  of  John  Delamater, 
deceased,  have  granted,  assigned,  bargained  and  sold,  and  hereby 
do  grant,  assign,  bargain  and  sell  unto  my  sister  Caroline  Dunton, 
all  my  right,  title,  interest  and  claim  of,  in  and  to  forty  shares  in 
the  capital  stock  of  the  Bank  of  the  United  States,  with  their  ad- 
vances and  dividends — and  three  shares  in  the  capital  stock  of 
the  Bank  of  Pennsylvania,  with  their  advances  and  dividends — 
which  forty-three  shares  are  not  mentioned  in  the  last  will  and 
testament  of  the  said  John  Delamater,  but  are  believed  by  me  to 
have  been  intended  by  him  for  my  said  sister  Caroline  Dunton, 
inasmuch  as  he  bequeaths  a  similar  number  of  shares  in  each  of 
those  banks  to  me,  and  takes  no  notice  of  the  other  half  of  them 
which  belonged  to  him.  And  I  do  request  that  the  executors  of 
my  said  father,  will  transfer  the  said  forty  shares  of  the  Bank  of 
the  United  States,  and  three  shares  of  Bank  of  Pennsylvania 
stock  to  my  said  sister,  or  to  any  person  for  her  use  whom 
she  may  designate,  as  and  for  her  sole  and  absolute  property,  as 
if  the  same  had  been  specifically  bequeathed  to  her  and  not  omitted 
in  the  said  will.  Witness  my  hand  and  seal  *this 
eighteenth  day  of  January,  one  thousand  eight  hundred 
and  thirty. 

ANN  DELAMATER." 
Signed,  sealed  and  delivered  ] 

in  the  presence  of  us, 
WM.  STEVENSON,  JR. 
JOHN  A.  ELKINTON."    J 

In  compliance  with  the  directions  of  this  instrument,  the  two 
acting  executors,  Mr.  Pike  and  Mr.  Dunton,  transferred  the  43 
shares  on  the  21st  of  January,  1830,  to  Caroline  Dunton. 

On  the  29th  of  December,  1830,  Dunton  the  executor,  settled  ^ 
an  account  in  the  Register's  office,  in  which  among  other  matters 
he  claimed  credit  for  the  43  shares  transferred  to  his  wife.     This 
account  was  headed  with  the  names  of  both  executors,  but  it  was 
sworn  to  by  Dunton  alone. 


367  SUPREME  COURT  [March  Term, 

(Delamater's  Estate.) 

In  the  Orphans'  Court,  exception  was  taken  to  this  credit  by 
John  A.  Elkinton,  who  had  married  Ann  Delaraater ;  and  the 
case  was  referred  to  an  auditor,  who,  after  hearing  the  evidence, 
and  the  arguments  of  counsel,  reported  that  the  transfer  of  the 
stock  was  made  under  sufficient  authority,  and  that  the  account 
as  settled  was  correct.  Exceptions  were  made  to  the  report, 
which  however,  was  confirmed  by  the  Orphans'  Court  after  argu- 
ment on  the  27th  of  October,  1835;  whereupon  an  appeal  was 
taken  to  this  Court. 

It  was  agreed  by  the  counsel  that  the  auditor's  notes  of  the 
testimony  should  be  received,  in  lieu  of  taking  depositions  de 
novoj  and  they  were  accordingly  annexed  to  the  record. 

Mr.  Pike,  the  co-executor,  testified  as  follows : 

"I  was  present  when  Miss  Delamater  signed  the  instrument 
respecting  stock.  To  the  best  of  my  recollection,  the  company 
consisted  of  Dr.  Elkinton.  First  time  I  saw  him.  Mr.  Steven- 
son. The  other  company  I  can't  recollect.  Think  Mr.  Dunton 
was  present  and  Ann  Delamater.  I  think  Mr.  Dunton  had  the 
paper  in  his  possession  down  stairs.  It  was  signed  up  stairs  in 
the  back  parlor.  Dr.  Elkinton,  Mr.  Stevenson  and  three  or 
four  friends  from  Princeton  were  present.  I  can't  particularly 
mention  the  conversation.  It  was  down  in  the  kitchen  that  I  first 
saw  them.  As  respects  any  particular  conversation  I  can't 
speak  positively.  Previous  to  the  paper  being  signed  the  cir- 
cumstances were. not  very  agreeable.  I  can't  say  particularly 
what  the  circumstances  were.  There  was  no  threatening  lan- 
guage. He  told  Mrs.  Dunton  something  like  he  did  not  think  it 
right  the  house  should  be  kept  open,  though  the  house  was  her 
own.  He  signified  about  paying  attention  to  company,  when 
she  should  be  attending  to  the  business  he  came  after.  I  can't 
say  particularly  whether  he  read  the  paper  to  her.  He  did  not 
tell  her  she  must  sign  it.  I  did  not  see  the  paper  before  it  was 
l"*3fi8T  brought  *that  night.  I  don't  think  I  did.  If  I  recol- 
lect right  I  went  past  my  house  to  Ann's  with  Mr.  and 
Mrs.  Dunton.  A  little  misunderstanding  took  place.  I  won't 
say  for  certain  if  Mr.  Dunton  read  the  paper  that  night.  Un- 
pleasant situation.  Two  children  disputing.  I  viewed  the  visit 
of  Mr.  and  Mrs.  Dunton  to  be  for  the  transfer  of  stock.  I  went 
down  with  Mr.  Dunton  to  Mr.  Ingersoll,  as  respects  a  correct 
way  of  doing  business  according  to  the  will.  I  don't  know  who 
drew  up  the  'instrument.  A  few  weeks  ago  I  called  on  Mr. 
Dunton ;  he  said  he  could  prove  by  Mr.  Ingersoll  that  I  knew 
all  about  it,  when  I  was  at  her  house.  Then  he  said  they  were 
pumping  me.  If  I  was  ever  consulted  about  the  paper  it  must 
have  been  through  the  influence  of  Mr.  Ingersoll,  as  connected 
with  other  business.  It  may  have  been.  I  stood  as  it  were  a 


1836.]  OF  PENNSYLVANIA.  368 

(Delamater's  Estate.) 

thorn  between  the  two.  I  never  approved  of  the  paper  before 
or  since.  Always  thought  what  was  left  out  of  the  will  was  to 
be  equally  divided  between  the  children.  I  see  plainly  as  cir- 
cumstances have  occurred,  how  things  stand.  It  Avas  thought 
after  the  transfer  took  place  they  would  be  a  harmonious  family. 
Instead  of  that,  they  are  not  friends,  and  I  among  the  rest  of 
them  as  I  find.  It  was  about  light  in  the  evening  when  we 
first  went  there.  They  went  in  the  down  door  stairs.  She 
came  down.  A  little  argument  arose,  unpleasantly  for  me.  I 
can't  say  what  was  first  said.  The  conversation  was  on  the 
transfer  of  the  stock.  Mrs.  Dunton  reflected  on  Mr.  Dunton, 
that  it  was  not  executed  down  stairs.  She  said  she  would  not 
put  her  foot  in  the  house  again.  At  that  moment  Ann  D.  came 
out  and  said  she  would  sign  it.  I  asked  Ann  D.  Mr.  Elkinton 
not  present  previous  to  her  signing  it.  This  question  was  down 
in  the  kitchen.  I  stand  here  disinterested,  with  a  clear  con- 
science. There  was  a  little  broiling  down  stairs.  I  told  Ann 
this.  I  said  I  had  one  question.  Well,  said  she,  Marinus,  what 
is  it?  Said  I,  if  you  sign  that  instrument,  you  will  never 
reflect  on  me.  No,  says  she,  I  never  will.  These  are  the  words 
to  the  best  of  my  recollection,  for  I  was  always  opposed  to  it. 
This  was  down  below.  She  signed  it  up  stairs  in  the  back  room. 
If  she  had  staid  a  moment  longer  it  would  not  have  been  signed, 
for  they  were  going  away.  Mrs.  Dunton  said  she  would  never 
enter  the  house  again.  Mrs.  Dunton  blamed  Mr.  Dunton  for 
not  having  it  signed  down  stairs.  Dr.  Elkinton  and  Mr.  Steven- 
son were  not  below.  None  below  but  the  family.  They  went 
up  from  the  kitchen  to  go  away.  Ann  came  out.  I  can't  say 
if  she  had  a  pen  in  her  hand.  The  gentlemen  witnessed  it.  A 
short  time  afterwards  Mr.  and  Mrs.  D.  went  away.  The  con- 
tents of  the  paper  were  not  communicated  to  the  gentlemen  who 
signed.  I  don't  think  it  was.  It  was  done  in  a  moment.  I 
know  they  did  not  read  it.  I  suppose  she  was  more  than  21. 
She  was  more  than  25.  Ann  is  the  oldest  sister  ;  I  called  upon 
you  (Mr.  Ingersoll)  once  or  twice  with  Mr.  Dunton  as  executor ; 
I  remember  coming  to  consult  you  about  transfer  of  stocks  ;  Mr. 
Dunton  came  ;  *I  did  not  recollect  your  drawing  the  r*o^q-| 
paper ;  I  recollect  his  coming  in  harmony  and  good  will  L 
to  me,  and  your  drawing  the  instrument ;  I  don't  recollect  that 
I  intimated  any  objection  to  your  drawing  this  instrument ;  at 
the  time  it  was  executed  I  did  not  state  my  objections  to 
Miss  Delamater  ;  I  don't  know  that  I  told  her -any  thing  more 
than  what  I  said  before  as  to  the  question.  I  told  her  about  not 
reflecting  upon  me  ;  I  don't  know  if  it  was  the  same  evening  I 
was  at  your  office.  In  conversation  with  Ann,  I  have  stated  my 
objections  to  the  instrument ;  she  was  an  orphan  ;  no  stock  in 


369  SUPREME  COURT  [March  Term, 

(Delamater' s  Estate.) 

New  York  that  I  know  of,  was  undisposed  of  by  will  ;  Mr.  Dun- 
ton  asked  Mr.  Ingersoll  as  to  all  proper  proceedings  under  the 
will  ;  I  recollect  Mr.  Dunton  having  this  instrument  at  my  house. 
There  was  some  argument  down  stairs.  She  partially  opposed 
signing  it  on  account  of  the  dispute.  The  will  was  the  subject  of 
conversation  ;  I  heard  her  say  that  she  thought  her  papa  meant 
that  Caroline  should  have  an  equal  proportion  of  the  estate  with 
her  ;  she  spoke  of  her  father  having  more  stock  than  in  the  will ; 
she  viewed  it  in  that  way,  that  her  father  meant  an  equal  division 
between  them.  There  was  jangling  about  the  instrument ;  then 
she  made  up  her  mind  about  the  paper.  It  was  a  family  quarrel 
among  them  ;  I  can't  say  she  did  positively  object  to  signing  the 
paper  down  stairs.  Mrs.  Dunton  said  that  in  case  the  transfer 
was  made,  and  it  was  not  right,  it  should  be  amicably  settled  be- 
tween them  ;  I  supposed  she  meant  she  would  give  back  half  of 
it.  The  marriage  took  place  ten  months  afterwards.  Nothing 
was  said  about  a  seal  to  the  paper." 

Ann  Kremer  testified  as  follows  :  — 

"  I  heard  a  conversation  last  Tuesday  week  at  Mr.  Elkinton's, 
between  those  persons.  I  went  there  with  Mr.  Dunton  with  a 
view  of  questioning  Mrs.  Elkinton  on  account  of  the  'money 
signed  over.  She  said  she  believed  it  to  be  an  act  of  justice  at 
the  time.  Dr.  Elkinton  was  present.  She  said  there  was  no 
force  used  when  she  signed  the  paper.  She  said  she  went  to  a 
grocery  store  opposite  for  a  pen  and  ink.  Dr.  Elkinton  said  that 
as  far  as  he  knew,  there  was  no  force  used.  She  said  she  knew  per- 
fectly well  the  contents  of  the  paper  when  she  signed  it.  Don't 
remember  any  thing  else  that  he  said.  Don't  recollect  Mrs.  E. 
saying  that  she  signed  on  condition  that  it  (the  property)  should 
be  returned  to  her  if  she  objected  to  it.  Mrs.  Dunton  said  she 
would  be  willing  to  restore  it  to  Ann  Delamater,  not  as  Mrs. 
Elkinton.  The  conversation  was  long,  and  there  was  a  great  deal 
that  I  could  not  recollect.  Mrs.  Elkinton  said  something,  I  do  not 
recollect,  (about  a  condition  to  the  paper.)  I  do  not  recollect  if 
she  said  any  thing  about  a  condition.  I  think  Mrs.  E.  said  some- 
thing about  signing  on  condition  to  restore  it,  and  Mrs.  Dunton 
said  in  answer  that  she  would  be  willing  to  restore  to  her  as  Ann 
Delamater,  and  not  as  Mrs.  Elkinton.  I  recollect  hearing  some- 
thing of  the  kind  about  Mr.  Dunton  insulting  her,  but  not  as  to 
r*37fn  *na^  being  *her  motive  for  signing  it.  Don't  recollect 
J  at  what  time  she  said  Mr.  Dunton  insulted  her.  Can't 
say  whether  Dr.  E.  or  Mrs.  E.  made  the  remark  about  the  con- 
dition. No  one  said  there  was  a  condition  at  the  time  it  wag 
siyned,  that  it  should  be  returned  if  objected  to.  I  understood 
it  was  said  in  conversation  between  themselves.  I  think  before 
the  paper  was  signed.  They  did  not  say  that  she  even  had  de- 


1836.]  OF  PENNSYLVANIA.  370 

(Delamater's  Estate.) 

manded  it  again.  I  live  with  Mr.  Dunton's  father.  Do  not  pay 
board  there.  I  make  my  home  there.  I  am  from  Wilmington, 
Delaware  ;  I  was  born  there  20  years  next  August.  I  am  a 
niece  of  Mr.  Dunton,  Sen.  Nothing  particular  talked  over  with 
Mr.  and  Mrs.  Dunton.  Mr.  Dunton,  Jr.  was  at  the  house  when 
we  went  there.  The  object  of  our  visit  was  not  talked  of  before 
him.  Mr.  Dunton  was  sick  when  we  went  there.  It  was  for  the 
purpose  of  knowing  whether  she  signed  it  as  an  act  of  justice. 
She  said  she  signed  it  believing  it  at  the  time  to  be  an  act  of  jus- 
tice. No  one  else  present." 

Nancy  McNeil  testified  as  follows  : — 

"  I  lived  in  the  family  of  old  Mr.  Delamater  nearly  twelve 
years.  Immediately  before  and  up^to  his  death.  Staid  there 
four  or  five  weeks  after  his  death.  Up  to  the  time  Miss 
Delamater  gave  up  house-keeping.  I  lived  there  at  the 
time  Mrs.  Dunton  was  married.  He  always  seemed  to  be  very 
attentive  to  his  business.  I  have  frequently  seen  him  writing. 
He  had  a  very  good  memory.  Always  seemed  as  if  he  had  a 
most  excellent  memory.  Always  kept  his  faculties  to  the  very 
last.  I  have  heard  him  say,  after  Mrs.  Dunton  was  married  and 
settled,  that  he  had  provided  well  for  her,  and  got  her  many  good 
things.  I  have  often  heard  him  say,  he  would  take  good  care  of 
Ann.  That  she  was  not  as  well  protected  as  Caroline.  She  had 
not  a  husband  then.  Caroline  got  bureau,  carpets,  &c.  She  had 
a  house  furnished  by  Mr.  Delamater.  It  was  a  three  story  brick 
house.  Never  saw  Dr.  Elkinton.  Believe  it  was  after  Mr.  De- 
lamater died.  He  came  there  to  visit  a  lady  from  New  York. 
About  three  weeks  after  D.'s  death.  It  was  in  January.  He 
died  7th  of  December.  Had  some  furniture.  There  were  some 
words  between  Mr.  Dunton  and  Mr.  Delamater.  Mr.  Dunton 
had  not  been  to  the  house  for  some  time,  and  Mrs.  Dunton  too. 
I  think  nearly  a  year  that  they  abstained  from  coming.  Mr. 
Delamater  had  a  spell  of  sickness,  and  she  came  to  see  him.  Mr. 
Dunton  and  Caroline  were  married  in  private,  i.  e.  unknown  to 
the  family.  The  family  and  all  of  them  did  not  like  it,  but  they 
did  not  seem  to  be  dissatisfied.  Never  saw  Dr.  Elkinton  but 
once  at  the  house.  He  had  been  there  but  one  evening,  and  I 
was  not  at  home.  It  was  in  the  early  part  of  January  that  he 
was  there.  I  attended  to  the  household  concerns  there.  Kitchen 
below.  House  in  Eighth  street  above  Arch.  Cellar  kitchen. 
My  general  place  in  the  house  was  in  the  kitchen.  This  dispute 
between  Mr.  Delamater  and  Mr.  Dunton  took  place  several  years 
ago.  The  brother  and  Mr.  *Dunton  had  the  dispute  at  first. 
The  brother  was  Mr.  Caldwell.  Mrs.  Dunton  took  part 
with  her  husband  against  Mr.  Caldwell  who  lived  there  then.  I 
can't  say  what  he  had  been  writing,  when  I  saw  him.  It  was  said 


371  SUPREME  COURT  [March  Term, 

(Delamater's  Estate.) 

Dr.  E.  came  there  to  see  a  lady  from  New  York.  I  live  at  corner 
of  Second  and  Mary  streets.  I  keep  house.  Am  not  married. 
Keep  store  there.  I  left  there  on  the  llth  of  January,  1830. 
Ann  Delamater  kept  house  for  her  father,  after  her  mother's 
death,  which  was  about  seven  years." 

Ellen  Pike  testified. 

"  I  was  on  a  visit  to  Miss  Delamater  at  the  time  this  paper 
was  signed.  Mr.  and  Mrs.  Dunton  entered  the  room.  Mr. 
Dunton  laid  the  paper  on  a  stand.  I  think  it  was  Mr.  Dunton. 
Ann  signed  it.  Previously  to  the  gentlemen  witnessing  the 
paper,  she  asked  if  it  was  necessary  the  paper  should  be  read, 
and  Mr.  Dunton  said,  oh  no.  Mr.  Stevenson  and  Dr.  Elkinton 
witnessed  it.  This  was  after  she  signed  it,  but  before  the  gen- 
tlemen witnessed  it.  I  did  not  see  the  contents  of  the  paper. 
Only  saw  it  lying  on  the  table.  Dr.  Elkinton  was  in  the  house 
about  half  an  hour  before  the  paper  was  signed.  I  was  intimate 
with  Miss  Delamater.  The  acquaintance  between  her  and  Dr. 
Elkinton  commenced  either  the  4th  or  5th  of  January.  I  think 
the  8th.  He  met  her  at  Dr.  Burr's  on  the  8th  January.  Called 
one  morning  afterwards,  and  then  was  there  that  evening,  which 
made  the  third  time  he  had  seen  her.  I  don't  think  he  had  any 
knowledge  of  the  contents  of  the  paper  when  he  signed  it.  I 
have  every  reason  to  believe  he  had  not.  He  was  in  the  room 
with  me  all  that  half  hour.  There  was  not  any  engagement 
between  them  of  marriage  at  that  time,  I  think.  About  three  or 
four  minutes  after  the  paper  was  signed  Mr.  Dunton  retired.  He 
put  it  in  his  pocket  directly  after  it  was  witnessed.  My  father, 
Mr.  and  Mrs.  Dunton  and  Ann  came  into  the  room  at  the  same 
time.  The  paper  was  signed  by  the  door.  I  did  not  see  her 
read  it.  I  don't  think  she  did  read  it  in  the  room.  They  were 
down  stairs  together.  She  did  not  say  any  thing  about  the  con- 
tents of  the  paper.  She  was  out  of  the  room  when  I  came  in, 
and  was  out  until  she  came  in  in  search  of  an  inkstand.  It  was 
about  half  an  hour  after  I  came,  that  she  came  in  for  the  ink- 
stand. She  was  in  and  out  at  the  time.  The  inkstand  was  got  in 
the  neighborhood  somewhere.  I  think  Mr.  Dunton  called  on  the 
gentlemen  to  witness  her  signature." 

Dr.  Burr  proved  that  the  acquaintance  of  Dr.  Elkinton  with 
Miss  Delamater,  commenced  on  the  9th  of  January,  1830. 

Mr.  F.  W.  Hubbell,  for  the  appellant. 

The  release  or  assignment  of  the  43  shares  of  stock  was  ob- 
tained under  circumstances  which  authorize  and  require  the  Court, 
sitting  as  a  Court  of  equity,  to  set  it  aside,  and  disregard  all  pro- 
ceedings which  have  been  had  under  it. 


1836.]  OF  PENNSYLVANIA.  372 

(Delamater's  Estate1.) 

*1.  The  recitals  are  erroneous.  Mr.  Delamater  is  not  r***7c>-\ 
to  be  considered  as  having  died  intestate  with  regard  to 
this  stock,  since  the  words  in  the  residuary  clause  are  broad  enough 
to  carry  it.  But  if  it  were  otherwise,  it  would  by  no  means  fol- 
low that  it  was  an  accidental  omission,  and  that  he  intended  to 
place  both  sisters  on  the  same  footing.  The  will  shows  that  he 
entertained  a  preference  for  his  unmarried  daughter,  and  if  he 
gives  her  a  greater  proportion  of  his  property,  it  will  be  seen  that, 
he  has  provided  liberally  for  Mrs.  Dunton's  children.  It  appears 
that  besides  the  40  shares  in  the  Bank  of  the  United  States,  and 
3  shares  in  the  Bank  of  Pennsylvania,  omitted  in  the  will,  he 
owned  22  shares  in  the  Manhattan  Bank  of  New  York,  and  6 
shares  of  turnpike  stock,  which  are  not  mentioned.  This  fact  was 
not  communicated  to  Miss  D.  at  the  time  she  was  required  to  sign 
the  paper. 

2.  As  between  these  parties  the  release  was  void.  Miss  D. 
stood  in  the  relation  of  cestui  que  trust  to  Mr.  Dunton ;  and  the 
policy  of  the  law  wisely  forbids  all  dealings  between  persons  so 
circumstanced,  whether  they  be  in  the  nature  of  sales  or  gifts. 
It  is  only  after  the  parties,  being  sui  juris,  have  deliberately  dis- 
solved the  relation  of  trustee  and  cestui  que  trust,  that  the  law 
permits  them  to  enter  into  contracts  with  each  other.  It  is  true 
that  the  gift  in  this  case  is  to  the  wife  of  the  trustee,  but  the  ob- 
jections are  as  strong,  and  the  rule  equally  applicable,  as  if  the 
gift  were  directly  to  the  husband.  It  is  true,  that  Miss  D.  was 
appointed  a  co-executor  by  the  will,  but  she  never  received 
letters  testamentary,  and  was  ignorant  of  her  rights  and  powers. 
She  was  a  young  woman,  dependent  upon  her  sister's  husband 
for  information  and  counsel.  The  evidence  shows  that  the  paper 
was  signed  under  circumstances  calculated  to  alarm  her,  and  to 
deprive  her  of  suitable  deliberation.  The  paper  was  drawn  by 
the  professional  adviser  of  Mr.  Dunton,  and  it  does  not  appear 
that  it  was  ever  read  over  to  her.  The  authorities  show  that  it 
lies  upon  the  party  setting  up  a  paper  like  this,  to  prove  that  the 
party  executing  it  was  made  acquainted  with  all  material  facts 
and  conusant  of  his  rights.  Mr.  Hubbell  cited  the  following 
cases :  Davoue  v.  Fanning,  (2  Johns.  C.  R.  252 ;)  Fox  v.  Mack- 
reth,  (2  Br.  C.  C.  400;)  Osmond  v.  Fitzroy,  (3  P.  Wms.  131 ;) 
Walmsley  v.  Book,  (2  Atkyns,  25  ;)  Wood  v.  Domes,  (18  Ves. 
119  ;)  13  Ves.  136  ;  Webb  v.  llourke,  (2  Sch.  &  Lef.  661 ;)  Ex- 
parte James,  (8  Ves.  422 ;)  Gibson  v.  Jayer,  (6  Ves.  276 ;)  Coles 
v.  Trecothick,  (9  Ves.  296 ;)  Exparte  Bennet,  (10  Ves.  381 ;) 
Exparte  Lacy,  (6  Ves.  627 ;)  Morse  v.  Royal,  (12  Ves.  872;) 
Lowther  v.  Lowther,  (12  Ves.  95  ;)  Lazarus  v.  Bryson,  (3  Binn. 
54;)  Moody  v.  Vandyke,  (4  Binn.  43;)  Say  v.  Barnes,  (4  Serg. 
VOL  i. — 25 


372  SUPREME  COURT  [March  Term, 

(Delamater's  Estate.) 

&  R.  112;)  Bixler  v.  Kunkle,  (17  Serg.  &  R.  298  ;)  Jeremy's 
Equity,  394;  Shelford  on  Lunatics,  &c.  318. 

I~S7S*1          *Mr.   C.  Ingersoll  and  Mr.  Chauncey,  for  the  appel- 

-•     lees : — 

There  is  nothing  in  the  circumstances  of  this  transaction,  call- 
ing upon  the  Court  to  interfere.  Miss  Delamater  was  29  years 
old,  a  co-executor,  conversant  with  the  situation  and  amount  of 
her  father's  property,  and  better  acquainted  than  any  one  else, 
with  his  intentions  as  to  the  disposition  of  it.  The  evidence  taken 
by  the  auditor,  shows  that  no  improper  influence  was  exercised. 
She  had  full  time  for  deliberation,  since  the  paper  was  not  signed 
until  more  than  a  month  after  her  father's  will  was  proved.  The 
recital  of  the  intestacy  of  Mr.  D.  in  respect  to  the  43  shares,  is 
certainly  correct.  To  argue  that  bank  stock  will  pass  under  a 
clause  like  that  in  the  will,  is  to  go  further  than  any  case 
has  yet  done.  The  words,  "the  remainder  of  my  worldly  sub- 
stance," are  explained  and  controlled  by  what  follows,  viz.  "  con- 
sisting of  furniture,  bedding,"  &c.  enumerating  them;  and  the 
words,  "  claims  and  demands,"  obviously  refer  to  debts  due  to 
him  by  individuals.  Then  if  the  transaction  be  such  that  it  would 
be  supported  in  an  ordinary  case,  is  there  any  thing  in  the  rela- 
tive situation  of  the  parties  to  invalidate  it.  There  is  no  such  rule 
as  that  a  trustee  cannot,  under  any  circumstances,  deal  with  the 
cestui  que  trust.  It  is  true  that  contracts  between  them  are 
looked  upon  with  suspicion ;  but  if  it  be  shown  that  the  parties 
dealt  as  strangers,  that  no  undue  influence  was  exerted,  and  no 
important  information  withheld,  there  is  no  reason  why  such  con- 
tracts should  not  stand.  Morse  v.  Royal,  (12  Ves.  272,  3  ;) 
Gibson  v.  Jayer,  (6  Ves.  277  ;)  Exparte  Lacy,  (6  Ves.  627  ;) 
1  Cruise  Dig.  538,  9,  tit.  12,  c.  4,  §  57  ;  Campbell  v.  Walker, 
(5  Ves.  673, 13  Ves.  60 ;)  Harris  v.  Tremenheere,  13  Ves.  136.) 
At  all  events  contracts  between  trustee  and  cestui  que  trust  are 
not  void,  but  voidable  at  the  election  of  the  latter,  who  will  be 
taken  to  have  confirmed  the  transaction,  if  he  suffer  any  consid- 
erable time  to  elapse.  Shotwell  v.  Murray,  (1  Johns.  C.  R. 
516  ;)  Prevost  v.  Gratz,  (1  Peters'  C.  C.  11.  364  ;)  Bruch  v. 
Lantz,  (2  Rawle,  416,  418 ;)  Lister  v.  Lister,  (6  Ves.  231.) 
Here  there  was  an  acquiescence  of  10  months  and  more.  But  in 
truth  the  parties  did  not  at  any  time  stand  towards  each  other  in 
the  position  of  trustee  and  cestui  que  trust.  Miss  D.  was  sui 
juris,  under  no  restraints,  and  possessed  equal  knowledge  and 
power  with  Mr.  Dunton.  She  might  have  taken  letters  testamen- 
tary at  any  time,  and  have  prevented  the  transfer  of  the  stock.  In 
this  case,  there  are  none  of  the  features  which  have  induced  the 
Courts  to  set  aside  conveyances  or  gifts.  The  legatee  here,  never 
was  in  the  power  or  under  the  influence  of  the  executor.  Mr. 


1836.]  OF  PENNSYLVANIA.  373 

(Delamater's  Estate.) 

Pike,  the  co-executor,  joined  in  the  transfer,  and  was  competent 
and  willing  to  protect  her  interests  if  they  required  it.  Besides 
this  was  the  case  of  an  agreement  between  members  of  the  same 
family  for  the  quieting  of  controversies.  And  in  such  cases, 
Lord  Elden  said,  in  Stockley  v.  Stockley,  (1  Ves.  &  Beames,  30,) 
"  the  Court  administers  an  equity  which  is  not  applied  to  agree- 
ments *generally."  Stapylton  v.  Stapylton,  (1  Atkyns, 
2 ;)  Gary  v.  Cary,  (1  Ves.  19.) 

The  opinion  of  the  Court  was  delivered  by 

GIBSON,  C.  J. — We  are  called  upon,  not  to  withhold  our  assist- 
ance from  the  execution  of  an  agreement,  but  to  cancel  a  contract 
executed ;  and  it  is  to  be  noticed  that  there  is  a  material  differ- 
ence between  circumstances  which  require  a  chancellor  to  forbear, 
and  those  which  require  him  to  act.  On  a  question  of  specific 
performance  he  may  choose  to  be  silent ;  and  his  action,  being  of 
grace  and  nc^,  of  right,  is  to  be  directed  by  a  sound  though  legal 
discretion.  But  circumstances  proper  for  recision,  involving,  as 
they  do,  the  control  of  a  legal  right,  are  necessarily  of  a  more 
positive  and  definite  cast.  The  consequence  of  the  distinction  is 
that  though  equity  will  refuse  to  interfere  for  purposes  of  exe- 
cution wherever  it  would  revoke,  it  may  refuse  to  revoke  where 
it  would  decline  to  execute.  A  chancellor  lends  not  assistance 
to  an  unconscionable  bargain,  accompanied  with  circumstances  of 
suspicion  though  not  positively  unfair,  as  in  Campbell  v.  Spencer, 
(2  Binney,  129  ;)  but  hardship  or  suspicion  of  unfairness  is  cer- 
tainly not  ground  of  recision.  Had  the  title  been  conveyed,  in 
the  case  quoted,  no  interference  of  the  jury  or  the  court  would 
have  prevented  a  recovery.  These  are  elementary  principles 
about  which  there  is  no  dispute.  Now  the  grounds  on  which 
equity  interferes  for  recision,  are  distinctly  marked,  and  every 
case  proper  for  this  branch  of  its  jurisdiction,  is  reducible  to  a 
particular  head.  They  are  principally  fraud,  mistake,  turpitude 
of  consideration,  and  circumstances  entitling  to  relief  on  the 
principle  of  quia  timet.  The  case  at  bar,  cannot,  consistently 
with  its  nature,  be  brought  under  either  of  the  two  last;  and  as 
there  is  small  allegation  of  mistake,  and  still  less  proof  of  it,  the 
contract  can  be  successfully  assailed,  if  at  all,  but  for  fraud 
proved  or  inferrible  from  want  of  consideration  and  the  relation 
in  which  the  parties  stood.* 

I  have  searched  the  proofs,  without  success,  for  anything  like 
a  suggestion  of  falsehood  or  suppression  of  truth.  Miss  Delama- 
ter  had  long  attained  the  age  of  discretion,  was  conscious  that  the 
title  was  vested  in  her,  and  was  aware  that  she  could  not  be 
divested  of  it  without  her  consent.  In  executing  the  act  of  trans- 

*See  6  Casey,  97,  110. 


374  SUPREME  COURT  [March  TVrm, 

(Dolama tor's  Estate.) 

for,  she  thought  she  was  but  carrying  out  the  plan  of  her  father ; 
and  there  is  nothing  to  show  that  her  belief,  whether  well  or  ill 
founded,  was  generated  by  the  arguments  or  suggestions  of  the 
donees :  neither  was  she  moved  towards  the  consummation  of  her 
purpose  by  threats  or  intimidation.  Mrs.  Dunton  had  declared 
that  she  would  not  again  enter  the  house  if  her  expectations  were 
disappointed ;  but,  surely  such  a  declaration  is  not  an  engine  of 
duress,  proper  for  the  consideration  of  a  chancellor.  It  is  cer- 
tainly not  a  proof  of  legal  duress ;  and  it  has  been  determined  in 
r*o^--i  Stouffer  v.  Latuhaw,  (2  Watts,  lt>5,)  that  there  is  *no 
such  thing  as  equitable  duress.  The  only  inducement 
to  the  act  not  made  good  to  the  letter,  is  Mrs.  Dunton's  promise 
to  have  the  matter  amicably  arranged,  if  found  not  to  be  right. 
Mr.  Pike  supposes  this  to  have  been  an  engagement  to  restore, 
and  Ann  Kremer,  the  other  witness,  speaks  of  it  very  indistinctly. 
It  seems  to  have  meant  no  more  than  the  parties  were  expected  to 
deal  with  each  other  on  honor  ;  and  that  is  certainly  not  a  cause 
for  relief.  In  dealing  with  a  person  of  weak  intellect,  such  a 
promise  might  be  a  circumstantial  proof  of  imposition ;  but  Miss 
Delamater,  is  not  alleged  to  have  been  such.  We  discern  nothing 
in  her  conduct  evincive  of  it.  She  appears  to  have  acted  on  a 
settled  conviction  that  her  father's  partial  intestacy  was  the  effect 
of  accident,  and  that  she  was  required  by  duty  to  repair  it. 

If  her  belief  in  this  particular  were  correct,  and  it  has  not 
been  shown  that  it  was  not,  the  moral  obligation  cast  upon  her 
by  the  discovery  of  her  fathers  intent,  would  be  a  consideration 
to  "Support  even  an  executory  agreement.  But  to  a  contract 
executed  and  requiring  not  the  interposition  of  a  chancellor,  a 
consideration  is  unnecessary.  A  gift  cannot  be  retracted ;  and 
even  a  voluntary  specialty  may  be  enforced  at  law  without  hind- 
rance from  equity,  which  does  not  recognize  the  want  of  an  ac- 
tual consideration  as  a  ground  of  injunction.  But,  without  even 
the  pretence  of  a  consideration,  the  executed  transfer  was  an 
irrevocable  gift  of  the  stock,  though  the  donor  may  have  been 
mistaken  in  the  existence  of  some  fact  which  was  the  collateral  in- 
ducement to  the  act. 

Did  the  parties  stand  in  a  relation  to  forbid  the  transaction  ? 
The  residuary  bequest  of  "  furniture,  bedding,  carpets,  china, 
kitchen  furniture,  looking-glasses,  crockery,  &c.,"  certainly  did 
not  carry  the  stock ;  nor  was  it  embraced  by  the  supplementary 
description  of  "  money  in  bank,"  or  "  all  claims  and  demands  of 
whatever  nature."  These,  as  justly  remarked  by  the  auditor, 
are  not  such  as,  in  the  ordinary  sense  of  the  words,  denote  bank 
stock.  The  subject  of  the  contest,  then,  did  not  pass  by  the 
will,  and  the  parties  stood,  as  regards  it,  in  no  fiduciary  rela- 
tion whatever.  What  then  was  there  to  prevent  them  from  deal- 
ing for  it  on  a  footing  of  ordinary  equality  ?  A  trustee  has  been 


1836.]  OF  PENNSYLVANIA.  375 

(Delamater'g  Estate.) 

suffered  to  acquire  even  the  trust  fund,  the  ceatui  que  trust  acting 
with  full  knowledge  of  the  circumstances  and  having  the  manage- 
ment of  the  sale.  The  rule  was  perhaps  never  carried  so  far  as 
to  prevent  the  parties  from  dealing  with  each  other  in  the  attitude 
of  strangers,  and  at  arms  length ;  and  it  seems  to  be  mitigated  by 
recent  decisions.  In  the  English  chancery  it  seems  to  be  no  more 
than  this.  Where  the  parties  stood  in  a  very  confidential  relation, 
such  as  guardian  and  ward,  attorney  and  client,  or  cestui  que 
truffi  and  trustee,  the  party  seeking  to  set  aside  the  deed  shall 
not  be  called  on  to  show  direct  fraud ;  yet  the  burthen  of  proving 
that  advantage  was  taken  of  the  confidence  incident  to  the  relation 
will  nevertheless  rest  on  him,  subject,  however,  to  rebuttal  by 
proof  from  the  other  *side,that  the  dealing  was,  in  fact,  r*q7«-| 
guarded  as  between  strangers,  and  without  advantage  *- 
taken  of  influence  or  superior  knowledge.  The  subject  is,  to  say 
the  least,  eloquently  discussed  in  Hunter  v.  Atkins,  (1  Cooper's 
Rep.  of  Ld.  Brougham's  Decisions,  464,)  to  which  those  who 
choose  to  pursue  it  further,  are  referred.  But  it  is  proper  to 
remark  that  the  relation  of  trustee,  including  that  of  guardian  and 
executor,  is  the  one  in  respect  to  which  the  Court  is  the  least  vigi- 
lant, being  most  especially  awake  to  the  transactions  of  an  attor- 
ney with  his  client.  Now  in  reference  to  the  transaction  here, 
the  relation  could  not  be  put  off,  for  it  never  existed ;  nor  did  the 
parties  treat  under  an  impression  that  the  stock  was  involved  in  it. 
Miss  Delamater  knew  that  it  was  not  peculiarly  in  the  control  of 
Mr.  Dunton  and  his  wife,  arid  that,  as  to  ownership  and  every- 
thing besides,  she  was  on  a  footing  with  them.  She  was  in  her 
thirtieth  year,  and  she  seems  to  have  been  every  way  competent 
to  deal  with  them  in  this  or  any  other  transaction.  But  what  was 
her  relation  to  them  even  in  respect  to  the  trusts  in  the  will  ? 
She  was  joined  with  them  in  the  execution  of  it;  and  though  she 
had  not  acted,  yet  being  officially  and  intellectually  competent,  she 
was  their  equal  and  at  liberty  to  assume  the  active  duties  of  the 
office  when  she  might  please  to  do  so.  She  was  exactly  informed 
of  her  position;  no  circumvention  was  practiced  on  her,  and 
though  she  was  strongly — perhaps  indelicately — pressed  by  con- 
siderations that  might  operate  on  the  sensibilities  of  a  sister,  these 
are  referrible  to  the  relation  of  blood  and  not  of  office.  Even  as 
a  relative  she  was  put  on  her  guard  by  her  kinsman,  Mr.  Pike  ; 
and  the  act  of  transfer  thus  performed  under  a  sense  of  moral 
obligation — possibly  a  mistaken  one — by  a  person  not  disqualified 
by  imposition  or  any  particular  relation,. is  conclusive. 

Report  and  decree  affirmed. 

Cited  by  Counsel,  2  Wharton,  62  ;  5  Id.  582  :  6  Barr.  105  ;  3  Casey,  56 ; 
6  Id.  93  ;  4  P.  F.  Smith,  389  ;  5  Id.  481. 

Cited  by  the  Court,  1  Harris,  282  ;  4  Wright,  479 ;  2  Grant,  160. 


377  SUPREME  COURT  [March  Term, 

[*377]  (/PHILADELPHIA,  APRIL  4,  1836.] 

BURCHARD  against  REES. 

1.  Where  an  assignment  of  goods  was  made  for  the  benefit  of  creditors, 
and  the  assignee  advertised  the  property  for  public  sale  at  a  certain  time, 
at  which  time  there  was  no  rent  due,  and  before  that  time  the  landlord 
distrained,  and  prevented  a  sale,  and  then  the  sheriff  seized  under  an  ir- 
regular execution,  and  sold,  and  out  of  the  proceeds  paid  the  rent  accru- 
ing to  the  landlord ;  it  was  held,  in  an  action  of  trespass  brought  against 
him  by  the  assignee,  that  he  was  not  entitled  to  any  deduction  for  the 
rent  so  paid  to  the  landlord. 

2.  Whether  a  levy  upon  goods  in  a  shop  in  the  lower  part  of  a  house 
amounts  to  a  levy  upon  the  furniture  in  the  upper  part  of  the  same 
house. 

AN  action  of  trespass  was  brought  in  this  Court  by  Jabez  Bur- 
chard,  assignee  of'  Henry  H.  Porter,  against  George  Rees,  sheriff 
of  the  city  and  county  of  Philadelphia,  James  G.  Clark,  John 
llemphill  and  Mark  Richards,  to  recover  damages  for  taking  the 
goods  of  the  plaintiff. 

The  case  was  tried  on  the  10th  of  February,  1836,  at  a  Court 
of  Nisi  Prius  held  at  Philadelphia,  by  Kennedy,  J.  and  a  verdict 
rendered  for  the  plaintiff  for  the  sum  of  $82b' ;  and  now  upon  a 
rule  which  had  been  obtained  to  show  cause  why  a  new  trial 
should  not  be  granted,  the  facts  appeared  to  be  as  follows  :  — 

On  the  25th  of  February,  1832,  James  G.  Clark  obtained  a 
judgment  by  confession  against  Henry  H.  Porter  for  $1017,  in 
the  Supreme  Court.  On  the  7th  of  March,  1832,  a  writ  of  fieri 
facias  issued  upon  this  judgment,  returnable  on  the  31st  of  the 
same  month,  being  the  last  return  day  of  the  March  term,  which 
was  lodged  in  the  sheriff's  office  on  the  day  it  issued. 

On  the  14th  of  March,  1832,  Henry  H.  Porter,  the  defendant 
in  the  judgment,  executed  an  assignment  of  all  his  estate  and 
effects  to  Sheldon  Potter  in  trust  for  the  benefit  of  his  creditors. 
The  assignment  was  duly  recorded,  and  an  inventory  of  the  effects 
assigned  was  made  by  the  assignee,  and  filed  according  to  law. 
Porter,  the  assignor,  carried  on  business  as  a  bookseller  and  pub- 
lisher on  the  ground  floor  of  the  building,  and  had  furnished  rooms 
in  the  upper  part  of  the  same  house. 

On  the  16th  of  March,  a  sheriff's  officer,  iiamed  Heston,  went 
with  the  fieri  facias  to  the  shop  of  Porter,  where  as  it  was  testi- 
fied by  a  witness  who  had  been  in  the  employment  of  Porter,  he 
exhibited  the  writ ;  and  being  told  that  an  assignment  had  been 
made,  he  went  away  ;  and  returned  on  the  same  or  the  next  day, 
when  he  was  informed  that  an  inventory  had  been  made  by  the 
assignee,  and  that  it  was  not  necessary  to  take  another.  He  then 
r*q-ro-i  went  away,  saying,  *he  would  submit  the  case  to  the 
attorney  for  the  plaintiff.  He  did  not  say,  while  there, 


1836.]  OF  PENNSYLVANIA.  378 

(Burchard  v.  Rees. ) 

that  he  made  any  seizure  of  the  property,  nor  did  he  leave  any 
person  in  charge,  nor  did  he  go  into  any  other  part  of  the  house 
than  the  shop. 

No  further  proceedings  appear  to  have  been  had  on  this  execu- 
tion until  the  7th  of  April,  when  the  goods  in  the  house,  including 
the  hooks  and  household  furniture,  were  removed  by  the  sheriff ; 
and  a  few  days  afterwards  they  were  sold.  The  proceeds  of  the 
goods  in  the  shop  were  $165  75,  and  of  the  other  articles  sold, 
$506  60  ;  in  all  $672  35. 

Of  this  sum  the  sheriff  on  the  10th  of  May,  paid  to  the  land- 
lord of  Porter  $293  34,  being  the  amount  of  rent  due  to  him  to 
the  18th  of  April,  and  as  it  appeared,  the  amount  of  one  quarter's 
rent,  deducting  two  days  ;  the  quarter  not  expiring  until  the  21st 
of  April.  The  attorney  of  the  plaintiff,  in  the  execution,  (Clark) 
signed  an  agreement  authorizing  the  payment  to  the  landlord,  so 
far  as  the  plaintiff  was  concerned.  The  landlord  in  his  receipt 
engaged  to  exonerate  the  sheriff  from  liability  by  reason  of  the 
payment  to  him.  The  balance  of  the  money  in  the  sheriff's  hands 
was  paid  to  the  plaintiff  in  the  execution. 

The  writ  of  fieri  facias,  under  which  the  sale  took  place,  was 
not  produced  at  the  trial,  but  it  was  agreed  that  the  only  endorse- 
ment on  it  was  the  following  in  pencil  marks  made  by  the  sheriff's 
officer,  Heston, 

"March  16th,  1832.  Levied  on  all  the  goods  and  chattels  of 
the  defendant  at  his  bookstore,  consisting  of  an  assortment  of 
books,  fixtures,  &c." 

Judge  Kennedy  charged  the  jury  in  substance  as  follows  : — 

"The  fi.fa.  being  in  the  hands  of  the  sheriff  and  in  full  force 
at  the  time  Porter  assigned  the  goods  to  Potter,  was  a  lien  upon 
them,  and  the  sheriff  had,  therefore,  clearly  a  right  to  seize  and 
take  them  in  the  hands  of  Potter,  the  assignee,  at  any  time  there- 
after before  the  expiration  of  the  return  day  of  the  writ.  But, 
if  he  omitted  or  neglected  to  make  a  seizure  until  after  that,  he 
could  not  do  it  then.  The  lien,  created  by  issuing  and  placing 
the  fi.  fa.  in  his  hand,  expired  with  its  return,  as  well  as  all  au- 
thority thereby  given  to  him  to  take  the  goods.  If,  however,  he 
made  a  seizure  upon  any  part  of  the  goods  before  the  return  of 
the  fi.  fa.  he  might  well  complete  the  execution  of  it,  thus  begun, 
by  making  a  sale  of  the  goods  so  seized  after  the  return  thereof. 
It  is  alleged  and  argued  by  the  defendant's  counsel,  that  there 
was  a  seizure  of  part  of  the  goods  in  the  name  of  the  whole,  be- 
fore the  return  of  the  writ.  If  the  sheriff  or  his  deputy  had  made 
such  seizure,  when  all  the  goods  were  within  his  power,  it  would 
have  been  good,  if  followed  up  with  reasonable  diligence.  But 
what  evidence  have  you  of  such  a  seizure  ?  The  *writ 
of  fi.fa.  itself  is  mislaid  or  lost,  and  has  not  been  pro- 


379  SUPREME  COURT  [March  Term, 

(Burchard  t>.  Rees.) 

duccd,  but  evidence  has  been  given,  that  after  the  return  of  it, 
an  indorsement  in  pencil  mark  was  seen  on  it,  in  the  following 
words,  to  wit,  "March  16th,  1882,  levied  on  all  the  goods  and 
chattels  of  the  defendant  at  his  book  store,  consisting  of  an  assort- 
ment of  books,  fixtures,  &c.  Sheldon  Potter,  assignee."  When 
this  indorsement  was  made,  does  not  appear,  whether  on  the  16th  of 
March,  1832,  or  not.  It  appears  from  the  deposition  of  Wendell, 
that  the  deputy  sheriff  was  at  the  store  on  that  day  or  the  day 
preceding,  and  saw  that  portion  of  the  goods  which  were  in  the 
Btore,  but  it  does  not  appear  that  he  was  in  any  other  part  of  the 
house,  or  saw  any  of  the  other  goods  at  any  time.  If,  however, 
he  made  the  indorsement  of  seizure  at  the  time  he  was  at  tlve 
Btore,  and  pursued  it  afterwards  with  reasonable  diligence,  it 
would  be  a  good  seizure  of  the  goods  in  the  store,  but  not  of  the 
other  goods.  It  does  not  purport  to  be  a  seizure  of  any  other 
goods  than  those  in  the  book  store,  and  must  be  confined  to  that. 
But  if  a  seizure  were  made  according  to  the  purport  of  this  in- 
dorsement, on  the  16th  of  March,  1832,  is  it  not  reasonable  to 
suppose,  that  the  sheriff  or  his  deputy  would  have  attended  to  it 
within  a  short  time  afterwards  ?  He  was  informed  that  the  goods 
had  been  assigned  for  the  benefit  of  the  creditors  of  Porter,  and 
of  course  had  reason  to  conclude  that  the  assignee  would  dispose 
of  them,  if  not  taken  from  him,  as  soon  as  he  could.  The  assignee 
accordingly  did  advertise  the  goods  for  sale  on  the  31st  of  March, 
and  was  then  about  to  sell  them,  when  Mr.  Davis  the  landlord  of 
the  assignor,  distrained  upon  them  for  rent.  During  this  time 
no  notice,  that  we  hear  of,  was  given  to  the  assignee,  by  the  sheriff 
or  his  deputy,  of  a  levy  upon  the  goods  or  any  portion  of  them. 
Nor  does  it  appear  that  any  allegation  to  this  effect  was  made  by 
the  sheriff  or  his  deputy  until  about  the  7th  of  April  ;  when  it 
was  claimed  that  the  goods  were  levied  on.  This  delay  and  silence 
on  the  part  of  the  sheriff,  under  the  circumstances  of  this  case, 
is,  perhaps,  sufficient  to  excite  a  suspicion,  that  no  part  of  the 
goods  were  levied  on  until  after  the  return  of  the  writ  of  fi.fa. 
However,  of  this  as  a  fact,  I  leave  you  to  judge  from  the  whole 
of  the  evidence.  But  beyond  the  goods  in  the  store  there  is  not 
even  the  color  of  evidence  to  show,  that  there  was  a  levy.  In 
regard  to  damages,  the  plaintiff  only  claims  the  amount  for  which 
the  goods  sold  at  sheriff's  sale  witli  interest  thereon.  So  far  as 
he  is  entitled  to  recover,  there  is  nothing  unreasonable  in  this ; 
less  ought  not  to  be  given.  If,  however,  you  should  be  of  opinion, 
that  the  goods  in  the  store  were  levied  on,  their  price  ought  to  be 
deducted,  and  your  verdict  be  given  for  the  price  of  the  residue 
of  the  goods,  with  interest  thereon  from  the  time  of  sale  to  the 
present  time.  The  defendant  cannot  have  an  allowance  made  for 
the  moneys  paid  to  Mr.  Davis,  the  landlord ;  because  as  against  the 


1836.]  OF  PENNSYLVANIA.  379 

(Burchard  v.  Rces.) 

goods  in  the  hands  of  Mr.  Potter,  the  assignee,  he  had  no  claim 
whatever  for  rent.  There  was  no  rent  in  arrear  and  due  to  him. 
It  was  only  against  *the  sheriff,  in  case  he  had  made  a  r*Qon-i 
seizure  of  the  goods,  while  the  fi.  fa.  was  in  force,  and 
sold  them  afterwards,  that  he  could  have  any  claim  for  rent. 
This  would  also  seem  to  have  been  the  understanding  of  the  par- 
ties ;  for  the  receipt  of  the  landlord  to.  the  sheriff  for  the  money, 
contains  an  engagement  to  refund  it  in  case  of  a  recovery  against 
the  sheriff." 

Mr.  Brasliears,  in  support  of  the  rule  to  show  cause  why  a  new 
trial  should  not  be  granted,  contended,  that  the  evidence  showed 
that  a  levy  was  made  on  the  16th  of  March,  and  enough  done  ac- 
cording to  the  practice,  to  establish  the  lien  of  the  sheriff;  and 
that  if  the  sheriff's  officer  was  prevented  from  proceeding  further 
by  the  misrepresentation  of  the  plaintiff's  agent,  the  plaintiff 
could  not  take  advantage  of  the  defect.  If  the  levy  was  good, 
the  payment  to  the  landlord  was  right,  since  by  the  decisions  the 
rent  is  to  be  apportioned  to  the  time  of  sale. 

Mr.  W.  M.  Meredith,  contra.  The  only  question  in  this  case 
was  one  of  fact,  viz.  whether  there  was  an  actual  levy,  which  was 
decided  by  the  jury  in  the  negative.  The  evidence  of  Wendell 
was  conclusive  upon  this  point.  The  indorsement  on  the  writ  by 
the  sheriff's  officer  was  not  made  at  the  time  he  went  to  the  store, 
and  there  was  no  reason  to  believe,  it  was  made  before  the  7th  of 
April.  Then  there  was  no  levy  until  after  the  return  day,  which 
certainly  is  too  late.  The  defendant  was  not  entitled  to  any  de- 
duction for  the  rent  paid  to  the  landlord,  since  the  quarter's  rent 
not  being  due  until  the  21st  of  April,  he  had  no  lien  upon  the 
goods  at  the  time  of  the  supposed  levy. 

PER  CLRIAM. — Whether  there  was  a  levy  at  all,  was  a  question 
properly  left  to  the  jury :  and  the  fact,  being  found  for  the  plain- 
tiff, dispenses  with  the  necessity  of  determining  whether  a  levy  of 
the  effects  in  the  room  would  have  included  effects  in  other  parts 
of  the  building.  If  the  dir  ction  was  wrong  in  respect  to  that,  it 
was  without  actual  prejudice,  and  is  not  an  assignable  error.* 
The  finding  disposes  also  of  the  lien  of  the  execution. 

It  is  plain  that  the  defendant  was  not  entitled  to  an  allowance 
for  the  payment  to  the  landlord.  But  for  the  distress,  followed 
immediately  by  the  sheriff's  seizure  before  rent  had  become  due, 
the  assignee  might  have  removed  the  goods  without  let  or  hin- 
drance from  any  one — the  object  not  being  to  elude  the  growing 

*See  3  Barr,  40,  156  ;  1  Casey,  119 ;  6  Id.  87  ;  7  Id.  324 ;  1  Wright,  154 ; 
5  Id.  111. 


380  SUPREME  COURT  [March  Term, 

(Mason  v.  Connell.) 

rent ;  and  that  they  were  detained  on  the  premises  till  rent  was 
incurred  by  an  unlawful  distress,  and  the  sheriff's  seizure  after 
the  return  day  of  the  writ,  could  not  justify  the  sheriff  in  paying, 
or  the  landlord  in  receiving.  This  point  also  was  properly  dis- 
posed of. 

Rule  discharged  and  judgment  on  the  verdict. 

Cited  by  Counsel,  1  Harris,  427. 


[*381]  [*PHILADELPHIA,  APRILS,  1836.] 

MASON  and  Another  against  CONNELL  and  Others. 

1.  The  liability  of  a  dormant  partner  to  creditors  may  be  avoided  by  proof 
of  fraud  in  the  formation  of  the  partnership,  if  no  part  of  the  funds  have 
been  received  by  such  dormant  partner. 

2.  It  seems  that  a  partnership  formed  by  articles  for  a  definite  period,  may 
be  dissolved  by  either  partner  before  the  termination  of  the  period. 

3.  One  partner  cannot,  without  the  consent   of  the  other,   introduce  a 
stranger  into  the  firm,  nor  can  he,  without  such  consent,  make  the  other 
partner  a  member  of  another  firm ;  but  such  consent  may  be  implied 
from  the  acquiescence  and  acts  of  the  parties  ;  and  if  such  other  partner 
is  made  acquainted  with  the  facts,  he  ought  to  dissent  from  the  arrange- 
ment ;  otherwise  he  will'be  bound  by  it. 

Tins  was  an  action  of  assumpsit  brought  by  Matthew  S.  Mason 
and  Ignatius  M'Donough  against  John  Connell,  Francis  Worley 
and  Thomas  Welsh,  to  recover  the  price  of  certain  goods  sold  and 
delivered  by  the  plaintiff  to  John  Connell. 

A  return  of  N.  E.  I.  was  made  as  to  Connell ;  and  the  action 
proceeding  against  the  other  defendants  was  tried  before  Mr. 
Justice  Rogers  at  a  Court  of  Nisi  Prius,  held  at  Philadelphia,  on 
the  25th  of  November,  1831. 

It  appeared  in  evidence  on  the  trial,  that  Francis  Worley  and 
Thomas  Welsh  had  for  some  time  previous  to  the  1st  of  Septem- 
ber, 1828,  been  engaged  in  business  under  the  firm  of  Worley 
and  Welsh  ;  the  former  residing  in  the  city  of  Philadelphia,  and 
the  latter  in  the  city  of  Baltimore,  and  that  John  Connell,  the 
other  defendant,  was  engaged  in  similar  business  in  the  city  of 
Pittsburgh. 

On  the  1st  of  September,  1828,  the  following  agreement  was 
entered  into : 

"  Articles  of  agreement  and  co-partnership  entered  into  and 
agreed  upon  by  John  Connell,  residing  in  the  city  of  Pittsburgh, 
state  of  Pennsylvania,  on  the  one  part,  and  Francis  Worley, 
merchant,  residing  in  the  city  of  Philadelphia,  and  Thomas  Welsh, 


1836.]  OF  PENNSYLVANJA.  381 

(Mason  v.  Connell. ) 

merchant,  residing  in  the  city  of  Baltimore,  on  the  other  parf> 
witnesseth,  that  the  above  named  John  Connell,  of  the  city  of 
Pittsburgh,  and  the  above  named  firm  of  Worley  &  Welsh  of 
Philadelphia,  have  this  day  formed  and  entered  into  a  copartner- 
ship to  carry  on,  and  conduct  the  mercantile  business  under  the 
name  of  John  Connell  in  the  city  of  Pittsburgh  and  state  of 
Pennsylvania,  on  the  following  terms.  The  said  John  Connell 
does  agree  and  hereby  bind  himself,  his  heirs,  executors,  admin- 
istrators and  assigns,  to  place  in  the  said  concern  as  above  named, 
the  amount  and  full  value  of  $12379  44  of  *goods  or 
merchandise  agreeable  to  the  annexed  statement,  the 
same  to  be  taken  and  held  by  the  above  named  parties  at  the 
specific  value  of  $9,000  as  a  capital  stock  in  trade ;  and  the  above 
named  firm  of  Worley  &  Welsh  agree  and  bind  themselves,  their 
heirs,  executors,  and  administrators  to  place  in  the  above  named 
copartnership  or  let  remain  in  the  hands  of  the  concern  in  Pitts- 
burgh, carried  on  under  the  name  of  John  Connell,  the  amount 
of  $2000  out  of  the  bill  of  goods  or  merchandise  bought  in  the 
name  of  John  Connell  from  the  firm  of  Worley  &  Welsh,  under 
date  of  the  26th  August,  1828,  and  they  further  agree  and  bind 
themselves  to  place  in  the  above  concern,  or  let  remain  out  of  the 
goods  bought  subsequently  to  the  date  hereof,  for  the  concern  of 
John  Connell,  the  further  sum  of  $3000  ;  the  said  $3000,  it  is 
however  agreed  upon,  is  not  to  be  placed  hi  said  concern  of  John 
Connell  before  the  first  day  of  July,  1829,  unless  it  can  be  made 
convenient  to  the  firm  of  Worley  &  Welsh;  and  it  is  further 
agreed  upon  by  the  parties  hereto  named,  that  on  and  after  the 
1st  of  March,  1829,  the  business  of  the  concern  shall  allow  John 
Connell  an  interest  of  6  per  cent,  per  annum  on  $7000,  and  after 
the  said  Worley  &  Welsh  shall  have  placed  the  additional  sum  of 
$3000  in  the  business,  which  will  then  make  a  capital  stock  of 
$5000  placed  in  the  concern  by  them,  then  the  concern  shall 
allow  to  John  Connell  an  interest  of  6  per  cent,  per  annum  on 
$4000.  It  is  further  understood  and  agreed  upon  by  the  parties 
herein  named,  that  after  paying  the  expenses  necessary  or  un- 
avoidable accruing  in  the  business,  then  there  shall  be  an  equal 
division  of  the  profits  that  may  or  shall  be  made  in  the  business, 
that  is  to  say,  one  half  to  John  Connell,  and  one  half  to  Worley 
&  Welsh ;  and  it  is  further  agreed  by  the  said  parties  herein 
named  that  the  copartnership  shall  continue  to  exist  for  the  term 
of  3  years  from  the  date  hereof,  unless  sooner  dissolved  by  mutual 
consent  of  the  partners. 

In  witness  we  have  hereto  subscribed  our  names,  the  1st  Sept. 
1828. 

JOHN  CONNELL, 
WORLEY  &  WELSH." 


382  SUPREME  COURT 

(Mason  v.  Connell.) 

The  name  of  the  firm  subscribed  to  this  agreement,  was  in  the 
handwriting  of  Worley. 

The  statement  referred  to  in  the  agreement,  and  annexed  to  it 
was  as  follows  : — 

"  Memorandum  of  John  Connell's  situation  in  business,  according 
to  his  representation  of  it,  on  the  1st  of  April,  1828,  including 
sales  made  out  of  his  stock  to  the  1st  of  April,  1828. 

Amount  of  stock  belonging  to  Anderson  &  Co.  (  QAJ.J.  nn 
taken  by  John  Connell,  April  1st,  1828. 

Amount  of  goods  in  Philadelphia  bought  by  John  )    QUrQ  ftl 
Connell,  in  Philadelphia,  in  May,  1828. 
r*Q«Qi         *Amount  of  stock  belonging  to  Anderson  )    Q-.OA  q« 

^J     &  Co.  in  the  retail  store  taken  by  John  Con-  \ 
nell,  1  April,  1828.  ) 

28133'  40 
Deduct  for  sales  made  from  1  April  to  Aug.  1,  1828,    11453  96 


16679  44 

Deduct  for  amount  of  goods  sent  to  Cincinnati,  1700 
Deduct  goods  in  hands  of  auctioneer,  2600      4300  00 


Balance  on  hand,  1st  Aug.  1828,  $12379  44 

The  foregoing  schedule  exhibits  the  amount  of  goods  in  the 
hands  of  and  belonging  to  John  Connell,  merchant,  of  Pittsburgh, 
state  of  Pennsylvania,  on  the  1st  day  of  August,  1828,  which 
goods  or  the  amount  thereof,  he  agrees  to  hold  subject  to  a  co- 
partnership now  about  to  be  formed  between  him  and  F.  Worley, 
merchant,  residing  in  Philadelphia,  and  T.  Welsh,  merchant,  re- 
siding in  Baltimore,  and  trading  under  the  name  and  firm  of 
Worley  &  Welsh  in  the  city  of  Philadelphia,  and  further  the 
said  John  Connell  agrees  to  place  in  the  said  copartnership  now 
about  to  be  formed,  the  above  amount  $12379  44  at  the  rate  or 
value  of  $9000,  and  to  be  received  and  taken  by  the  above  named 
parties  at  the  specific  value  of  $9000. 

In  witness  whereof  we  have  subscribed  our  names  the  1st  Sept. 
1828. 

JOHN  CONNELL, 
WORLEY  &  WELSH." 

Between  the  1st  of  April,  1829,  and  the  18th  of  May  in  the 
same  year,  the  plaintiffs  sold  to  Council,  at  Pittsburgh,  certain 
goods  amounting  together  in  price  to  $583  55. 

On  or  about  the  1st  of  June,  1829,  the  following  instrument 
was  executed,  which  was  indorsed  on  the  original  articles  of  co- 
partnership. 


1836.]  OF  PENNSYLVANIA.  383 

(Mason  v.  Connell.) 

"June  1st,  1829.  We,  the  subscribers,  parties  to  the  within 
agreement,  do  hereby  mutually  agree  to  revoke,  annul  and  make 
void  said  instrument  of  writing  from  the  date  of  the  same,  for 
reason  of  inability  to  fulfil  the  stipulations  as  named  therein  by 
the  parties  of  the  first  part;  and  the  parties  of  the  second  part, 
having  never  received  any  part  or  portion  of  profits  therefrom 
and  hereby  agreeing  to  relinquish  all  claim  to  the  same,  it  is 
agreed  this  instrument  shall  be  null  and  void  from  its  date  as 
though  it  had  never  existed :  and  it  is  hereby  further  acknowl- 
edged and  declared  by  us,  that  there  never  has  been  any  contracts 
or  liabilities  incurred  by  virtue  of  it  or  from  a  knowledge  of  its 
existence.  In  witness  of  the  same,  we  have  hereunto  subscribed 
our  names  and  firm. 

JOHN  CONNELL, 
WORLEY  &  WELSH." 

*0n  the  21st  of  July,  1829,  John  Connell,  being  r* 004-1 
largely  indebted,  executed  an  assignment  of  all  his  L 
estate  and  effects  to  Francis  Worley  and  such  others,  his  credit- 
ors, as  should  execute  a  release  within  a  certain  specified  time : 
Worley  &  Welsh  were  preferred  creditors  in  this  instrument,  and 
as  such,  received  from  the  assets  $11,323  22,  the  Avhole  amount 
of  their  claim.  A  release  dated  the  4th  of  August,  1829,  was 
executed  by  several  creditors,  but  not  by  the  plaintiff  in  this 
case. 

It  was  proved  by  a  clerk  in  the  employ  of  Worley  &  Welsh, 
that  there  was  no  book  kept  by  them  in  the  name  of  "John  Con- 
nell," and  he  testified  that  he  never  knew  a  debt  contracted  in 
that  name  by  Worley  &  Welsh,  or  any  debt  which  had  been  con- 
tracted by  John  Connell,  paid  by  them,  and  never  knew  of  any 
purchase  made,  or  act  done,  that  indicated  the  existence  of  a  part- 
nership between  Connell  and  Worley  &  Welsh.  After  the  assign- 
ment he  was  sent  to  Pittsburgh  to  attend  to  the  business  arising 
under  it,  where  he  obtained  possession  of  the  books  of  Connell, 
and  from  them  made  out  a  statement  of  Connell's  debts  and  assets, 
by  which  it  appeared,  that  there  was  a  deficiency  of  $25407  09, 
which  according  to  the  representations  made  to  him  by  Connell, 
arose  between  the  1st  of  September,  1828,  and  the  time  of  the 
assignment  in  July  1829.  On  his  cross-examination,  the  witness 
stated  that  Worley  was  not  a  partner  in  the  conceni  at  Baltimore ; 
Welsh  was  engaged  in  a  different  line  of  business.  There  was 
no  evidence  on  the  books  of  Connell  showing  how  the  deficiency 
arose.  The  books  were  balanced  to  the  1st  of  September,  1828, 
when  the  balance  in  favor  of  Worley  £  Welsh  was  $4i04  29. 
On  the  1st  of  January,  1829,  the  balance  in  favor  of  Worley  & 
Welsh  on  their  books  was  $13285  32. 


384  SUPREME  COURT  [March  Term, 

(Mason  t>.  Connell.) 

Judge  Rogers  charged  the  jury  in  substance  as  follows:— 
"This  suit  is  founded  on  an  alleged  partnership  between 
Francis  Worley,  Thomas  Welsh  and  John  Connell,  and  a  sale 
of  goods  to  them  during  the  existence  of  the  partnership.  To 
entitle  the  plaintiffs  to  recover,  it  is  necessary  for  them  to  show 
the  existence  of  the  debt ;  that  there  was  a  partnership ;  and  that 
the  goods  were  furnished  during  the  existence  of  the  partnership. 
This  the  plaintiffs  have  done,  1st,  by  proof,  that  the  goods  were 
sold  to  John  Connell  at  several  times,  viz.  the  23d  April,  the 
2d  and  18th  May,  1829.  2.  By  the  articles  of  copartner- 
ship of  the  1st  September,  1829:  and  this  is  what  lawyers  term 
Ifrima  facie  case,  or  in  other  words,  in  the  absence  of  all  proof 
on  the  part  of  the  defendants,  it  is  such  evidence  as  will  entitle 
the  plaintiffs  to  gain  a  verdict.  All  that  is  necessary  for  a 
stranger  to  do,  is  to  show  the  articles  themselves.  That  is  such  a 
proof  of  partnership  as  throws  the  burthen  of  proof  on  the  other 
side.  It  is  incumbent  on  them  to  show,  that  no  act  has  been  done 
in  pursuance  of  the  articles,  or  that  the  partnership  has  been  dis- 
solved. I  do  not  mean  here  to  touch  upon  a  point  in  the  cause, 
r*Qcc-i  *which  will  be  noticed  hereafter.  The  agreement  is  lim- 
J  ited  in  point  of  time  to  three  years,  from  the  1st  of 
September,  1828.  The  goods  were  furnished  between  the  1st  Sep- 
tember, 1828,  and  the  18th  May,  1829.  And  the  presumption 
is,  that  the  articles  of  copartnership  were  not  a  dead  letter ;  but 
the  inference  is$  that  they  were  acted  on  by  the  parties  according 
to  their  stipulations.  So,  also,  the  presumption  is,  that  the  goods 
went  to  the  use  of  the  firm  and  not  to  the  separate  use  of  Con- 
nell.  In  default,  then,  of  any  proof  to  the  contrary,  always  sup- 
posing that  Worley  signed  the  articles  with  the  consent  of  Welsh, 
such  evidence  has  been  produced  as  would  make  it  your  duty  to 
find  a  verdict  in  favor  of  the  plaintiffs.  And  this  brings  me  to 
the  defence.  If  I  understand  the  defendants'  counsel,  it  may  be 
considered  under  two  heads:  1.  They  allege  fraud  practiced  by 
John  Connell  on  Worley  &  Welsh,  which,  as  they  say,  avoids 
the  contract ;  and  that  this  being  the  case  of  a  dormant  partner- 
ship, the  plaintiffs  are  not  entitled  to  recover:  that  the  parties 
never  acted  on  these  articles,  that  this  was  not  an  actual,  but  a 
contemplated  partnership ;  and  that,  even  if  a  partnership  once 
existed,  there  was  a  virtual  dissolution  of  it  before  the  debt  was 
contracted.  Partnership  is  a  contract  of  two  or  more  persons  to 
place  their  money,  effects,  labor,  and  skill,  or  some,  or  all  of 
them,  in  lawful  commerce  or  business,  and  to  divide  the  profits, 
and  to  bear  the  loss,  in  certain  proportions.  It  is  not  the  actual 
reception  of  profits,  that  constitutes  a  partnership,  but  a  capa- 
bility of  receiving  them,  if  made.  A  contract  of  partnership  may 
be  made,  either  by  deed,  which  you  know  is  an  instrument  under 


1836.]  OF  PENNSYLVANIA.  385 

(Mason  0.  Coimell.) 

seal,  or  by  an  agreement,  not  under  seal,  as  was  done  here. 
There  are,  you  well  know,  several  kinds  of  partners.  An  osten- 
sible, actual  or  known  partner,  a  dormant  or  sleeping  partner, 
and  a  nominal  partner.  This  is  the  case  of  a  dormant  partner ; 
for  it  has  been  held,  that  where  two  persons  were  concerned  to- 
gether as  partners,  but  the  business  was  done  in  the  name  of 
one,  and  it  was  not  generally  known  that  they  were  partners,  the 
other  was  a  dormant  partner,  (5  Cowen,  534.)  It  seems  to  have 
been  the  intention  of  all  parties,  that  Worley  &  Welsh  should  be 
dormant  partners.  The  business  was  to  be  carried  on  in  the 
name  of  John  Connell,  nor  was  it  known  that  any  partnership 
existed.  The  plaintiffs  certainly  had  no  knowledge  of  any  other 
person  than  John  Connell  at  the  time  of  the  sales.  This  then, 
being  the  case  of  dormant  partners,  the  defendants  contend,  that 
John  Connell,  on  the  1st  September,  1828,  committed  a  fraud  on 
Worley  &  Welsh,  and  that  the  contract  of  copartnership  was  void, 
and  being  void,  a  dormant  partner  is  not  liable  to  suit.  This 
brings  into  view  a  principle  which  is  new.  At  least  I  recollect  no 
decided  case,  and  none  has  been  produced.  I  take  this  to  be  the 
law.  Fraud  avoids  all  contracts,  and  if  you  should  be  of  the  opin- 
ion, that  there  was  a  fraud  in  the  concoction  or  original  formation 
of  the  partnership,  this  contract  of  copartnership  was  void ;  and  if 
the  *contract  was  wholly  void,  the  defendants  being  dor- 
mant,  and  not  ostensible  partners,  are  not  in  general  lia- 
ble.  The  distinction  is  this.  Whatever  fraud  or  imposition  there 
may  be  between  the  parties  where  they  are  known  partners,  can- 
not affect  third  persons,  who  are  presumed  to  contract  on  the 
faith,  and  with  a  knowledge  of  the  partnership.  But  that  is  not 
the  case  of  a  dormant  partner.  There  third  persons  do  not  credit 
the  firm,  but  the  individual  with  whom  they  deal.  They  then 
receive  no  injury.  The  reason  why  a  person  becomes,  by  im- 
plication and  operation  of  law,  clothed  with  the  character  of  a 
partner,  and  as  such,  liable  to  third  persons,  is,  that  by  the  effect 
of  the  agreement  for  a  participation,  the  party  participant  takes 
from  the  creditors  a  part  of  that  fund,  which  is  the  proper  security 
to  them  for  the  satisfaction  of  ,their  debts,  and  upon  which  they 
rely  for  payment.  Another  reason  assigned  for  subjecting  a  dor- 
mant partner  to  responsibility  is,  that  if  he  were  exempted,  he 
would  receive  usurious  interest  for  his  capital  without  its  being 
attended  with  any  risk.  The  rule,  then,  must  be  taken  with  this 
qualification,  that  if  the  dormant  partner  has  actually  received 
part  of  the  profits,  or  any  part  of  the  capital,  then  he  is  liable  to 
third  persons,  although  there  may  have  been  fraud  in  the  contract 
of  partnership.  He  is  liable,  because  he  actually  takes  from  the 
creditors  a  part  of  that  fund,  which  is  the  proper  security  to  them 
for  satisfaction  of  the  debts,  and  on  which  they  rely  for  payment. 


386  SUPREME  COURT  [March  Term, 

(Mason  t).  Connell.) 

But  where  there  is  such  a  fraud  as  to  avoid  the  contract  of  co- 
partnership between  the  parties,  and  where  no  part  of  the  funds 
have  been  received  by  the  dormant  partner,  in  such  a  case,  it  is 
the  opinion  of  the  Court,  that  dormant  partners  are  not  liable  to 
creditors,  who  give  credit,  not  on  the  faith  of  the  partnership,  but 
of  that  of  the  individual  with  whom  they  contract.  Third  persons 
would  be  in  no  better  situations  than  the  fraudulent  partner,  who 
clearly  would  have  no  right  of  action  against  the  innocent  partner. 
If  such  should  be  your  opinion  of  the  facts,  your  verdict  should 
be  in  favor  of  the  defendants.  And  this  leads  to  the  inquiry, 
what  facts  have  been  proved ;  and  this  will  be  your  duty,  under 
some  few  directions  which  I  shall  give  you,  as  to  the  manner  in 
which  this  cause  should  be  viewed.  You  will  recollect  that  I  told 
you,  that  the  plaintifis,  by  proof  of  the  debt,  and  by  the  produc- 
tion of  the  articles  of  partnership,  had  exhibited  a  prima  fane 
case ;  that  they  had  shown  a  cause  of  action.  This,  then,  shifts 
the  proof  from  the  plaintiffs  to  the  defendants.  As  the  defence 
consists  in  an  allegation  of  fraud,  it  is  necessary  for  them  to 
prove  it.  The  burthen  of  proof  is  thrown  upon  them.  And 
here  "let  me  observe  to  you,  that  fraud  is  not  to  be  presumed ; 
as  in  the  case  of  the  imputation  of  every  other  criminal  action, 
every  man  is  presumed  to  be  innocent  until  the  contrary  is  made 
to  appear.  It  is  incumbent  on  the  defendants  to  satisfy  you 
of  the  fact  of  fraud,  either  by  positive  testimony  or  the  proof 
of  sucli  circumstances  as  usually  attend  fraud.  It  is  not  left 
r*3871  *°  *conjecture5  but  such  evidence  must  be  given  as  to 
'  J  satisfy  you,  that  there  has  been  a  fraud  or  imposition 
practiced  upon  the  defendants  by  Connell,  of  such  a  nature  as 
to  avoid  the  contract.  It  is  not  by  arguments,  but  by  facts, 
that  this  must  be  made  to  appear.  The  circumstance  on  which 
the  defendants  mainly  rely  on  this  part  of  their  case  is,  the 
great  deficit,  upwards  of  &28,GOO  which  appears  in  the  account 
of  John  Connell,  from  the  1st  September,  1828,  until  his  assign- 
ment in  July,  1829.  from  this  the  defendants  wish  you  to 
infer,  that  at  the  time  the  partnership  was  made,  viz.  on  the  1st 
September,  1828,  Connell  must  have  been  largely  indebted,  and 
that  that  fact  was  not  communicated  by  Connell  to  the  defend- 
ants. .AJl  the  evidence,  we  have,  is  derived  from  the  articles  of 
copartnership  itself.  We  know  not  what  took  place  at  their  ex- 
ecution, for  the  witnesses,  if  any  were  present,  have  not  been 
produced.  (His  Honor  here  read  the  statements  contained  in 
the  articles,  and  asked)  What  proof  have  you  that  these  repre- 
sentations were  not  true  to  the  letter  ?  If  Connell  was  largely 
indebted  at  the  time,  and  Worley  &  Welsh  did  not  choose  to 
inquire  into  his  circumstances,  this  is  as  much  a  proof  of  folly 
on  their  part  as  fraud  on  his.  They  cannot  now  say,  there  was 


1886.]  OF  PENNSYLVANIA.  387 

(Mason  v.  Gonnell.) 

fraud  on  the  part  of  Connell,  that  the  contract  is  void,  and  they 
are  not  liable  as  partners.  The  nonfulfilment  of  the  stipulations 
in  the  partnership  alone  would  not  be  such  a  fraud  as  to  avoid 
the  contract,  so  as  to  free  a  dormant  partner  from  a  debt,  con- 
tracted by  the  partners.  To  have  this  effect,  it  must  be  such  a 
fraud,  as  to  avoid  the  whole  contract,  to  make  it  void  from  the 
beginning.  In  addition  to  this  the  plaintiffs'  counsel  have  en- 
deavored to  show  the  manner  in  which  these  losses  occurred. 
Whether  his  explanation  has  been  satisfactory,  is  for  you  to  say. 
It  will  be  for  you  specially,  to  remember  that  the  whole  burthen 
of  proof  is  thrown  upon  the  defendants.  But  the  defendants 
say,  that  although  they  executed  the  article  of  the  1st  Septem- 
ber, yet,  that  nothing  further  was  done  in  pursuance  of  it ;  that 
in  effect,  as  soon  as  the  partnership  was  formed  it  was  dissolved, 
or  that  at  any  rate  it  was  dissolved  before  the  23d  of  April, 
1829.  If  this  be  true  they  are  not  liable.  If  they  merely  exe- 
cuted the  articles  without  more,  then  the  plaintiffs  have  no  right 
of  action  ;  that  is  to  say,  if  John  Connell  continued  to  carry  on 
business  on  his  own  account,  after  the  copartnership,  and  this 
clearly  appears,  the  defendants  cannot  be  charged  in  this  suit. 
In  such  a  case  the  partnership  has  not  commenced,  or,  if  com- 
menced, it  is  dissolved  by  the  act  or  mutual  consent  of  both 
parties.  When  a  partnership  is  commenced  by  articles  unsealed, 
as  is  the  case  here,  it  is  nevertheless,  in  legal  effect,  a  partner- 
ship formed  by  parol,  and  consequently  may  be  dissolved  by 
parol.  And  here  again,  it  is  necessary  to  advert  to  the  distinc- 
tion between  an  ostensible  and  a  dormant  partner.  In  the  case 
of  a  dormant  partner  whose  name  has  never  been  announced, 
*he  may  withdraw  from  the  concern  without  making  r*qoo-i 
the  dissolution  of  the  partnership  publicly  known ;  for  L 
his  liability  depends  upon  the  mere  fact  of  partnership  and  no 
credit  has  been  given  to  him  personally  as  a  supposed  member 
of  the  firm.  Not  so  in  the  case  of  an  ostensible  partner,  who, 
on  his  retirement  from  a  partnership  to  protect  himself  from 
liability,  must  give  notice  of  the  dissolution  of  the  partnership. 
I  incline  to  the  opinion  that,  although  these  parties  formed  a 
partnership  by  articles  for  a  definite  period,  it  may  be  dissolved 
by  either,  before  the  period  arrives.  I  am  aware  that  *the  doc- 
trine of  the  English  Courts  is  different,  and  that  a  contrary 
principle  has  been  recognized  by  Lord  Eldon  in  Peacock  v.  Pea- 
cock, (16  Ves.  56,)  and  in  Crowshey  v.  Maule,  (1  Swan.  495,) 
yet  I  hold  that  the  American  decisions  are  founded  in  the  better 
reason,  and  are  more  calculated  to  advance  our  commercial  in- 
terests. There  is  no  such  thing  as  an  indissoluble  partnership. 
It  is  revocable  in  its  own  nature,  and  each  party  may,  by  giving 
due  notice,  dissolve  the  partnership  as  to  all  future  capacity  of 
VOL.  i.— 26 


388  SUPREME  COURT  [March  Term, 

(Mason  ».  Connell.) 

the  firm  to  bind  him  by  contract ;  and  he  has  the  same  legal  power, 
even  though  the  parties  had  covenanted  with  each  other,  that  the 
partnership  should  continue  for  such  a  period  of  time.  The  only 
consequence  of  such  a  revocation  of  the  partnership  power  in  the 
intermediate  time,  woujd  be,  that  the  partner  would  subject  him- 
self to  a  claim  of  damages  for  a  breach  of  the  covenant.  And  this, 
with  the  fact  that  it  would  be  contrary  to  their  own  interest  to 
dissolve  the  connection  without  cause,  will  in  most  cases  be  an 
effectual  security.  It  is  for  the  public  interest  that  no  partner 
should  be  obliged  to  continue  in  a  partnership  against  his  will,  in- 
asmuch as  a  community  of  goods  in  such  a  case  engenders  discord 
and  litigation.  These  views  are  supported  in  Marquand  v.  The 
New  York  Manufacturing  Company,  (17  Johns.  R.  525,)  and 
in  Skinner  v.  Dayton,  (19  Johns.  588.)  And  this  is  also  the 
doctrine  of  the  civil  law,  which  holds,  that  each  partner  has  a 
power  to  dissolve  the  connection  at  any  time,  notwithstanding  any 
agreement  to  the  contrary,  and  that  such  a  power  results  from  the 
nature  of  the  association. 

If  then  you  should  be  of  the  opinion  that  nothing  more  was 
done  than  the  mere  execution  of  the  articles  of  copartnership,  or 
that  the  partnership  was  dissolved  by  mutual  consent  or  by  the 
will  of  one  of  the  parties  before  this  debt  was  contracted,  then 
your  verdict  should  be  in  favor  of  the  defendants.  I  say  before 
the  debt  was  contracted  ;  for  if  the  partnership  was  subsisting  at 
the  time  of  the  indebtedness  of  the  defendants,  then  there  is 
nothing  in  the  defence  ;  that  is  to  say,  if  on  the  23d  of  April, 
the  2d  of  May,  and  the  18th  of  May,  1829,  the  times  the  debt 
was  contracted,  the  defendants  were  the  partners  of  John  Con- 
nell, the  defendant  fails  in  this  part  of  his  defence.  The 
plaintiffs  will  have  acquired  a  vested  right,  of  which  no  subse- 
quent dissolution  can  deprive  him.  In  your  deliberations  on  this 
part  of  the  case,  you  will  recollect  the  observations  I  made  to 
P^ooq-i  *you  in  another  part  of  this  charge:  they  are  strictly 
-•  applicable  here.  The  plaintiff  has  shown  a  prima  facie 
case.  The  burthen  of  proof  is  thrown  upon  the  defendants.  The 
presumption  is,  that  John  Connell  was  trading  for  the  company 
under  the  name  or  firm  of  John  Connell,  as  was  agreed  upon  in 
the  articles.  It  is  for  the  defendants  to  prove  that  no  act  was 
done  in  pursuance  of  the  partnership  ;  and  if  dissolved,  he  should 
give  us  something  from  which  we  might  be  able  to  ascertain,  with 
some  reasonable  certainty,  the  manner  of  its  dissolution,  when 
and  where,  and  how  it  was  dissolved.  This  imposes  no  hardship 
on  the  defendant,  when  he  seeks  to  avoid  a  liability  arising  from 
his  own  evils.  If  no  act  was  done,  but  the  articles  were  a  mere 
dead  letter,  it  has  been  asked,  why  were  not  the  articles  can- 
celled ?  If  dissolved,  why  have  we  not  some  proof  of  the  fact 


1836.]  OF  PENNSYLVANIA.  389 

(Mason  v.  Connell. ) 

more  than  mere  conjecture,  derived  from  circumstances,  which 
to  say  the  least  of  them  are  equivocal  ?  It  is,  however,  not  for 
me  to  press  this  matter.  You  have  heard  the  evidence,  and  the 
arguments  of  counsel  and  to  you  I  commit  this  part  of  the  cause. 

It  is  true  as  has  heen  contended  by  the  defendants'  counsel, 
that  whatever  may  be  the  language  of  articles  of  copartnership, 
the  dealings  and  transactions  among  the  partners  may  be  such,  as 
to  amount  to  distinct  evidence,  that  some  of  the  articles  were 
waived  by  all  the  parties.  But  the  evidence  must  be  strong,  and 
in  the  language  of  the  books  amounting  to  demonstration.  So 
also,  subsequent  inconsistent  transactions  may  show  a  total  aban- 
donment of  the  articles  of  partnership.  But  so  far  from  their 
being  inconsistent,  the  plaintiff  contends  that  all  the  acts  and 
transactions  of  the  parties  are  consistent  with  a  continuing  and 
subsisting  partnership.  For  this  he  has  referred  to  the  books 
themselves,  of  which  you  will  judge. 

Both  sides  have  referred  to  the  instrument  of  writing, 'dated 
the  first  of  June,  1829  ;  and  which,  whether  it  be  called  a  renun- 
ciation, nullification,  revocation,  dissolution  or  declaration  of  the 
parties,  I  am  sorry  was  admitted  in  evidence.  If  it  is  considered 
as  a  dissolution  of  partnership,  except  as  between  the  parties 
themselves,  it  can  only  take  effect  from  its  date,  and  this  cannot 
effect  the  plaintiffs'  claim  which  arose  prior  to  the  first  of  June. 

It  is  not  competent  for  the  parties  to  manufacture  facts  such 
as  those  stated  in  this  instrument.  If  they  could  and  they  were 
to  be  effectual,  there  would  be  an  end  of  all  recoveries,  in  cases 
such  as  the  present.  If  the  instrument  be  effectual  for  any  pur- 
pose, it  rather  goes  to  show  a  dissolution  of  partnership  of  that 
date,  which  would  be  some  evidence  that  up  to  the  first  of  June 
there  was  a  continuing  and  subsisting  partnership  between  Wor- 
ley  &  Welsh  and  John  Connell.  After  the  first  day  of  June, 
1829,  the  situation  of  Worley  &  Welsh,  may  be  entirely  different 
from  what  it  is  prior  to  that  time. 

In  conclusion,  I  shall  direct  your  attention  to  the  only  remain- 
ing point  in  the  cause.  The  defendants  contend  that  the  articles 
of  partnership  were  signed  by  Worley  alone  and  not  by  Welsh. 
That  *one  partner  cannot  bind  another  in  this  way.  That  r*qqA-i 
this  is  a  joint  suit,  and  that  as  Welsh  is  not  liable,  neither  L 
is  Worley  bound  in  this  suit.  This  is  said  to  be  a  technical  ob- 
jection; it  can  hardly  be  called  so,  since,  if  this  be  the  fact,  then 
Welsh  avoids  the  payment  of  $25,000 :  the  loss  is  thrown,  and 
rightly  too,  on  Worley  and  Connell. 

The  law,  as  regards  this  objection  may  thus  be  stated.  As  one 
partner  can  in  no  instance,  without  the  consent  of  his  copartners, 
introduce  a  stranger  into  the  concern  as  a  partner ;  neither  can 
he  without  such  consent  make  him  a  member  of  another  firm.  It 


390  SUPREME  COURT  {March  Term, 

(Mason  v.  Connell.) 

is  true  he  may  engage  in  a  particular  adventure  ;  but  this  is  an 
attempt  to  form  a  general  partnership  without  his  consent.  If 
two  of  the  jury  were  partners,  and  one  was  sent  to  China  to  at- 
tend to  the  concerns  of  the  firm,  it  would,  I  think,  surprise  you 
to  find  yourself  engaged  in  a  general  partnership  with  an  inhabi- 
tant of  China.  It  is  out  of  the  ordinary  commercial  transactions, 
and  therefore  presumed  to  be  without  the  scope  of  his  authority. 
A  contrary  principle  would  indeed  be  a  dangerous  one  to  admit 
into  the  law  of  partnership.  It  does  not  come  within  the  scope 
of  his  authority  so  to  bind  his  copartner.  But  although  consent 
is  absolutely  necessary  to  constitute  a  partnership,  yet  such  con- 
sent may  be  testified  either  in  express  terms  or  assent  may  be 
tacit,  and  to  be  implied  from  the  acts  and  conduct' of  the  parties. 
If  then  Worley  signed  the  article  of  th'e  1st  of  September,  1828, 
and  there  is  no  previous  or  subsequent  authority  from  Welsh,  the 
defendants  are  not  liable  in  this  suit ;  for  as  has  been  very  cor- 
rectly observed,  this  is  a  joint  suit,  and  he  must  recover  against 
all  or  none.  He  must  prove  his  contract  as  it  is  laid  in  his  decla- 
ration. But  if  Welsh  either  knew  of  it  before  and  authorized  it, 
or  he  has  subsequently  assented  to  it,  he  is  bound,  as  well  as  the 
other  partner  to  the  contract.  And  this  will  render  it  necessary 
for  you  to  direct  your  attention  to  the  facts  which  have  been 
given  you  in  evidence  on  this  part  of  the  case  ;  for  as  you  find 
them  so  should  your  verdict  be.  If  you  believe  that  Worley 
signed  the  article  with  a  previous  or  subsequent  assent  of  Welsh, 
before  the  debt  was  contracted,  your  verdict  should  be  in  favor 
of  the  plaintiffs ;  but,  if  you  should  be  of  opinion  that  it  was 
signed  without  any  previous  or  subsequent  authority  from  Welsh, 
your  verdict  should  be  for  the  defendants.  And  here,  it  is  but 
justice  to  remark  that  the  burthen  of  proof  is  thrown  upon  the 
plaintiffs.  It  is  not  only  necessary  for  them  to  prove  the  debt 
and  the  articles  of  copartnership,  but  inasmuch  as  the  articles 
were  signed  by  Worley  alone,  (and  not  so  far  as  we  know  in  the 
presence  of  Welsh,)  it  is  equally  necessary  to  satisfy  you,  that 
the  act  met  the  approbation  of  Welsh.  It  is  not  required  that 
there  should  be  direct  and  positive  testimony  of  this  ;  if  you  can 
reasonably  infer  it  from  all  the  circumstances  which  has  been 
proved,  that  is  sufficient.  For  you  will  recollect  I  told  you,  that, 
r*3Q11  Chough  consent  is  absolutely  necessary  to  *constitute  a 
J  partnership,  yet  such  consent  may  be  testified  either  in 
express  terms,  or  the  assent  may  be  tacit,  and  to  be  implied  solely 
from  the  acts  and  conduct  of  the  parties.  If  Welsh  knew  of  it, 
he  ought  to  have  dissented  from  the  arrangement ;  otherwise, 
he  is  bound.  It  will  not  do  for  him  to  take  the  benefit  of  the 
business  if  it  proves  successful,  and  to  avoid  loss,  if  it  should  be 
an  unfortunate  concern.  This  case  must  be  tested  by  the  prin- 
ciples of  common  sense,  and  if  from  the  circumstances  you  be- 


1836.]  OF  PENNSYLVANIA.  391 

(Mason  v .  Connell. ) 

lieve,  that  Mr.  Welsh  assented  to  the  arrangement  of  Mr.  Worley, 
he  is  equally  bound  to  Worley  himself." 

The  jury  having  found  for  the  defendants,  a  motion  for  a  new 
trial  was  made  on  the  following  grounds  : — 

"  1st.  Because  there  was  evidence  enough,  in  the  cause,  to  show, 
that  Thomas  Welsh  authorized  or  assented  to  the  partnership, 
which  was  formed  on  the  1st  of  September,  1828,  between  John 
Connell,  Francis  Worley  and  Thomas  Welsh. 

2d.  Because  the  verdict  was  against  the  charge  of  the  Court." 

Mr.  Brashears,  and  Mr.  Sergeant  argued,  that  upon  the  evi- 
dence the  jury  ought  to  have  found  for  the  plaintiffs.  They  cited 
3  Stark,  1070,  1078. 

Mr.  Randall  and  Mr.  P.  A.  Browne,  in  support  of  the  ver- 
dict. The  law  was  laid  down  as  favorably  for  the  plaintiffs  as 
they  had  any  right  to  expect,  and  the  jury  having,  by  their  ver- 
dict, disposed  of  the  question  of  fraud,  the  only  point  upon  which 
the  law  would  avail  them,  there  is  no  ground  for  the  interference 
of  the  Court.  In  the  course  of  their  remarks,  the  counsel  cited 
Mercein  v.  Andrews,  (10  Wendell,  461.)  [ROGERS,  J.  I  can- 
not think  that  case  is  law.  GIBSON,  C.  J.  Certainly  it  goes  too 
far.] 

The  opinion  of  the  Court  was  delivered  by 

SERGEANT,  J. — After  a  review  of  this  case  on  the  present  mo- 
tion for  a  new  trial,  we  are  of  opinion,  that  the  charge  of  the 
Judge,  who  tried  the  cause,  was  correct  in  matters  of  law,  and 
that  the  only  question,  on  which  doubt  could  be  entertained,  was 
a  question  of  fact,  whether  or  not  Welsh  assented  to  the  partner- 
ship. That  question  was  left  fairly  to  the  jury,  who  have  decided 
in  favor  of  the  defendants.  And  supposing  the  Court  might 
have  felt  a  difficulty  in  arriving  at  the  same  conclusion,  that  is 
not  a  sufficient  reason  for  setting  aside  the  verdict.  The  jury  are 
the  proper  judges  of  facts  ;  and  the  Court  will  not,  in  that  respect, 
interfere  with  their  verdict,  unless  it  be  against  the  weight  of 
evidence.  Should  the  Court  do  so,  they  would  virtually  take 
from  the  jury  their  peculiar  *province.  In  the  present  r*ono-i 
case  the  evidence  presents  no  circumstance,  by  which  L 
the  assent  of  Welsh  is  so  satisfactorily  established,  that  a  conclu- 
sion might  not  be  drawn  of  its  non-existence.  That  conclusion 
the  jury  have  come  to,  and  there  it  must  rest. 

Motion  for  a  new  trial  denied. 

Cited  by  Counsel,  5  Watts  &  Sergeant,  565  ;  1  Parsons,  521. 
Cited  by  the  Court,  post  396  ;  1  Harris,  71. 
See  also,  8  Watts  &  Sergeant,  262. 


392  SUPREME  COURT  [March  Term, 

[PHILADELPHIA,  APKIL  5,  1836.] 
CARTER  against  CONNELL  and  Others. 

1.  In  an  action  against  A.  B.  and  C.  as  partners,  to  recover  the  price  of 
goods  sold  to  A.,  the  others  being  dormant  partners,  the  defendants  gave 
in  evidence  a  release  executed  by  the  plaintiff  to  A.  of  all  demands,  &c. 
It  appears  that  A.  had  executed  an  assignment  to  B .  of  all  his  estate, 
for  the  payment  of  creditors,  among  whom  B.  and  C.  were  preferred  to 
a  large  amount,  and  that  the  release  was  executed  in  consequence  of  a 
stipulation  hi  the  assignment :  Held,  that  the  concealment  of  the  fact  of 
the  partnership  at  the  time  of  the  execution  of  the  release,  was  a  fraud 
upon  the  plaintiff,  which  avoided  the  release. 

2.  In  an  action  against  three  persons  as  partners,  two  of  whom  only  have 
been  summoned,  the  partner  as  to  whom  a  return  of  n.  e.  i.  has  been 
made,  is  not  a  competent  witness  for  the  other  defendants,  to  disprove 
the  allegation  of  a  partnership  having  existed,  although  released  by 
them. 

3.  A  witness  called  to  authenticate  a  paper,  cannot  be  asked  whether  to  the 
best  of  his  impression,  the  paper  is  in  the  hand  writing  of  the  party. 

THIS  was  an  action  of  assumpsit  brought  by  Durden  B.  Car- 
ter against  John  Connell,  Francis  Worley,  and  Thomas  Welsh,  to 
recover  the  price  of  goods  sold  and  delivered  by  the  plaintiff  to 
John  Connell. 

The  action  was  tried  before  the  Chief  Justice  at  a  Court  of 
Nisi  Prius,  held  at  Philadelphia  on  the  19th  of  November,  1835. 

The  plaintiff  having  proved  the  sale  and  delivery  of  the  goods, 
gave  in  evidence  certain  promissory  notes,  drawn  by  Connell  for 
the  same,  each  dated  the  8th  of  June,  1829 — 

One  at  5  months  for  -            -            $172  63 

"    at  6  months  for  172  00 

"   at  7  months  for  172  00 

"   at  8  months  for  -            -              172  00 


$688  63 

r*oqo-i  *He  then  gave  in  evidence  the  articles  of  agreement 
or  copartnership,  stated  in  the  case  of  Mason  v.  Connell, 
(ante,  p.  381,)  and  the  assignment  by  Connell  to  Worley,  men- 
tioned in  the  same  case.  Besides  these,  the  books  of  Worley  & 
Welsh,  and  of  Connell  were  given  in  evidence  ;  and  certain  letters 
between  the  defendants  in  the  years  1827,  1828,  and  1829 ;  and 
certain  draughts  and  acceptances,  upon  which  the  name  of  John 
Connell  appeared  with  that  of  Thomas  Welsh. 

The  defendant  then  gave  in  evidence,  the  general  release  to 
Connell,  which  had  been  executed  by  the  plaintiff  in  this  case  ; 
the  account  settled  by  Worley  as  assignee  of  Connell ;  the  re- 


1836.]  OF  PENNSYLVANIA.  393 

(Carter  v.  Connell.) 

ceipts  of  the  several  creditors  for  their  dividends  under  the  assign- 
ment ;  and  the  agreement  of  revocation  or  annulment,  endorsed  on 
the  articles  of  partnership,  (ante,  p.  383.) 

The  counsel  for  the  defendants  then  oifered  in  evidence  the  de- 
position of  John  Connell,  to  which  the  plaintiff's  counsel  objected, 
but  the  Chief  Justice  admitted  it  to  be  read  ;  reserving  the  ques- 
tion of  the  competency  of  the  witness. 

The  defendant's  case  being  closed,  the  plaintiff  gave  evidence  to 
show  that  at  the  date  of  the  alleged  revocation,  (June  1st,  1829,) 
Connell  was  not  in  Philadelphia  but  in  Baltimore,  which  place  he 
left  on  the  3d  of  June. 

A  paper  alleged  to  be  in  the  handwriting  of  Connell  was  pro- 
duced by  the  defendants ;  and  several  witnesses  were  examined 
upon  the  question  of  the  handwriting.  Among  others,  a  witness 
named  See,  testified  as  follows :  "  I  know  John  Connell.  I  think 
I  know  his  handwriting,  but  would  not  be  willing  to  be  qualified  to 
it.  I  think  I  have  seen  him  write.  I  have  received  promissory 
notes  from  him.  If  I  were  to  see  some  of  the  notes,  I  could  say 
if  it  was  his  handwriting."  The  following  question  was  then  pro- 
posed to  the  witness :  "Are  you  able  to  say  whether,  to  the  best 
of  your  impression,  this  paper  is  in  the  handwriting  of  John  Con- 
nell or  not?"  The  defendants'  counsel  objected  to  the  question, 
and  the  judge  decided  that  it  could  not  be  put. 

The  evidence  on  both  sides  being  closed,  the  Chief  Justice 
charged  the  jury  in  substance :  that  in  point  of  law,  a  partner 
could  not  enlarge  the  partnership  contract  by  taking  in  another 
partner,  or  taking  his  copartners  into  another  firm.  Assent 
might  however  be  given  subsequently ;  and  if  the  agreement  in 
this  case  was  carried  into  actual  execution,  the  presumption  was 
that  Welsh  knew  of  it ;  and  if  he  did  know  the  fact,  he  was  bound 
to  disclaim  the  arrangement,  or  he  would  be  bound  by  it.  The 
presumption  is  .that  a  man  executes  his  contracts.  But  it  is  not 
to  be  presumed  for  the  *  purpose  of  founding  another  r*  004-1 
presumption,  that  Welsh  knew  of  the  arrangement  being 
in  force.  How  far  the  evidence  supported  the  plaintiff's  allega- 
tion as  to  the  partnership  arrangements  having  been  carried  into 
effect,  was  a  question  of  fact  for  the  jury.  Supposing,  however, 
that  a  partnership  was  established,  the  defendants  say  that  they 
are  not  bound  by  it,  if  drawn  into  it  by  fraud  and  misapprehen- 
sion. The  law  is  so ;  but  the  jury  will  say  what  evidence  there  is 
of  fraud.  It  was  also  contended  on  the  part  of  the  defendants, 
that  whatever  may  have  been  the  partnership  arrangements,  they 
were  relinquished  before  the  purchase  from  the  plaintiff,  and  there- 
fore they  are  not  liable.  If  such  were  the  fact,  it  would  certainly 
follow  that  they  were  not  liable ;  the  defendants  being  dormant 
partners.  The  question  of  the  effect  of  the  release  to  Connell 
was  reserved. 


394  SUPREME  COURT  [March  Term, 

(Carter  t>.  Connell.) 

The  jury  found  for  the  defendants ;  and  a  rule  having  been 
granted  to  show  cause  why  there  should  not  be  a  new  trial ; 

Mr.  Brashears  and  Mr.  D.  P.  Brown,  argued  in  support  of 
the  rule:— 

1.  The  deposition  of  Connell  was  improperly  admitted.     One 
partner  cannot  be  a  witness  to  discharge  his  copartners  from  lia- 
bility, by  proving  that  in  point  of  fact,  there  was  no  partnership. 

3  Starkie,  1083,  4 ;  Gow  on  Partnership,  262,  note  (1)  to  Am. 
ed.;  Simons  v.  Smith,  (1  Ry.  &  Moody,  29;  21  E.  C.  L.  R. 
374;)  Miller  v.  Ml  ClenacJian,   (1  Yeates,  144;)   Gardner  v. 
Olden,  (2  Yeates,  185  ;)  1  Phillips,  59,  134;)  M'Coy  v.  Light- 
ner,  (2  Watts,  847 ;)  Black  v.  Mason,  (2  Penn.  Rep.  138.) 

2.  The  Court  ought  to  have  permitted  the  question  to  be  put  to 
the  witness,  of  his  impression  respecting  the  handwriting  of  Con- 
nell.    There  is  no  substantial  difference  between  impression  and 
belief;  and  evidence  of  handwriting,  except  when  the  witness  was 
actually  present  at  the  signature,  is  all  matter  of  opinion.     2 
Starkie,  372,  658;  Rogers  v.  Shaler,  (Anthon's  N.  P.  C.  109;) 

4  Esp.  N.  P.  C.  37. 

3.  The  release  of  Connell  cannot  be  held  to  operate  as  a  re- 
lease of  his  copartners,  who  were  not  known  at  the  time  to  possess 
that  character.     The  doctrine  has  never  been  carried  so  far  as  to 
discharge  dormant  partners.     In  Robinson   v.    Wilkinson,   (3 
Price,  538,)  it  was  held,  that  the  acceptance  of  a  bill  of  one 
partner  did  not  discharge  a  dormant  partner;  and  Graham,  B. 
said,  "  In  general  a  release  of  one  partner  is  a  release  of  all ;  but 
a  party  has  always  a  right  against  a  concealed  partner  of  whom 
he  has  previously  had  no  knowledge,  as  soon  as  he  discovers  him, 
unless  that  ignorance  were  his  own  fault,  as  if  he  had  not  used 
due  diligence  in  finding  him."    In  this  case,  the  release  ought  not 
to  be  allowed  to  operate ;  because  it  was  a  fraud  upon  the  plaintiff 
to  hold  out  Worley  &  Welsh  as  creditors,  when  in  fact  they  were 
partners. 

*Mr.  Randall,  for  the  defendants  : — 
1.  Was  Connell  interested  so  as  to  render  him  inad- 
missible. The  question  relates  to  the  time  of  his  deposition,  viz. 
August,  1834.  I  admit  that  if  there  was  a  partnership  fund  which 
might  be  increased  or  diminished  by  his  evidence,  he  would  not 
be  admissible.  But  it  was  shown  by  the  accounts  of  the  assignee, 
that  the  assets  fell  far  short  of  the  debts.  The  testimony  was 
offered  after  the  release  had  been  given  in  evidence,  and  after  the 
plaintiff  had  produced  the  assignment,  which  was  of  itself  a  dis- 
solution of  the  partnership.  Gow,  252 ;  Crriswold  v.  Wadding- 
ton,  (15  Johns.  82;)  Marquand  v.  Man.  Co.  (17  Johns.  535;) 


1836.]  v      OF  PENNSYLVANIA.  395 

^  (Carter®.  Connell.) 

Murray  v.  Munford,  (6  Co  wen,  443.)  There  is  a  strong  cur- 
rent of  authorities  in  favor  of  the  admission  of  copartners,  co-obli- 
gors, and  others  in  similar  situations.  Collyer  on  Pp.  462,  3  ; 
Roscoe  on  Evidence,  88  ;  Gow  on  Pp.  216  ;  Ward  v.  Hayton, 
(2  Esp.  N.  P.  C.  552 ;)  Green  v.  Deacon,  (2  Starkie,  N.  P.  C. 
347  ;)  Moody  v.  King,  (2  Barn.  &  Ores.  558  ;)  Affalo  v.  Fou- 
drinier,  (6  Bing.  306  ;)  Worrell  v.  Jones,  (7  Bing.  395 ;)  Bate  v. 
Russell,  (1  M.  &  M.  332 ;)  Smith  v.  Allen,  (18  Johns.  245  ;) 
Clark  v.  Carter,  (3  Cowen,  84 ;)  Grant  v.  Shurter,  (1  Wendell, 
148  ;)  Willing  v.  Consequa,  (1  Peters,  C.  C.  R.  303  ;)  D<  Wolf 
v.  Johnson,  (10  Wheat.  367,  384 ;)  Le  Roy  v.  Johnson,  (2  Peters, 
Rep.  194;)  Robertson  v.  Mitt,  (2  Harris  &  Gill,  98.) 

2.  The  release  of  Connell  necessarily  operated  as  a  discharge 
of  the  other  partners,  if  they  were  such.  The  plaintiff  relies  upon 
an  extremely  sharp  rule  of  law,  to  charge-  Worley  and  Welsh 
upon  contracts  which  they  never  made,  and  to  which  they  were 
not  privy ;  and  he  cannot  complain  if  another  rule  of  the  same 
branch  of  the  law  is  applied  to  him.  The  doctrine  is  well  estab- 
lished and  extends  through  a  variety  of  cases,  that  a  release  of 
one  joint  contractor  is  a  release  of  all.  Gow  on  Pp.  202 ;  Cheet- 
ham  v.  Ward,  (1  Bos.  &  Pull.  630 ;)  Consequa  v.  Willing,  (1 
Peters,  C.  C.  R.  306  ;)  Ward  v.  Johnson,  (13  Mass.  Rep.  148 ;) 
Robertson  v.  Smith,  (18  Johns.  459  ;)  Smith  v.  Black,  (9  Serg. 
&  R.  142)  ;  Coe  v.  Hutton,  (1  Serg.  &  R.  398  ;)  Milliken  v. 
Brown,  (1  Rawle,  391.)  These  cases  show  that  the  law  with  re- 
spect to  ostensible  partners  is  clearly  settled ;  and  the  principle 
applies  with  equal  force  to  the  case  of  a  dormant  partner.  It  is 
said  that  there  was  fraud  in  the  concealment  of  the  partnership 
in  this  case.  This  may  be  averred  of  every  case  of  partnership 
in  which  the  names  of  the  partners  are  not  communicated  to  the 
world.  If  the  concealment  of  a  dormant  partnership  is  a  fraud, 
then  the  dissolution  of  such  a  partnership  ought  to  be  published, 
which  has  never  been  held  to  be  necessary.  At  all  events,  Welsh 
cannot  be  charged  with  a  fraud,  since  the  evidence  shows  that  he 
was  at  the  time  and  continues  to  be,  a  resident  of  Baltimore  ;  arid 
to  succeed  in  this  action,  the  parties  must  be  shown  to  be  jointly 
liable.  Gow.  273  ;  Armstrong  v.Hussey,  (12  Serg.  &  R.  315;) 
*Kelly  v.  Hurlbut,  (5  Cowen,  534  ;)  Newmarch  v.  r*qq^-i 
Clay,  (14  East,  239).  There  is  no  authority  for  the 
position  taken  on  the  other  side,  excepting  the  case  of  Robertson 
v.  Wilkinson;  and  there  is  little  more  in  that  case,  than  the  dic- 
tum of  Baron  Graham. 

The  opinion  of  the  court  was  delivered  by. 
SERGEANT,  J. — The  defence  in  this  suit  embraced  the  grounds 
taken  in  Mason  v.  Connell,  and  others  not  arising  in  that  case. 


396  SUPREME  COURT  [March  Term, 

(Carter  v.  Council.)  _ 

In  the  first  place,  the  sale  by  the  present  plaintiff  was  made  on 
the  8th  June,  1829,  which  was  subsequent  to  the  date  of  the 
paper  executed  by  Connell  and  Worley,  revoking  the  partnership 
of  the  1st  September,  1828  ;  and  the  defendants  contended  that 
the  firm  was,  in  no  event,  liable  for  this  debt.  The  plaintiff 
answered  that  the  paper  of  the  1st  June,  1829,  was  antedated ; 
and  called  witnesses  to  show  that  Connell  was  absent  from  Phila- 
delphia at  that  time.  In  the  next  place,  the  defendants  set  up 
the  release  executed  by  the  plaintiff  to  Connell  on  the  20th 
August,  1829,  as  a  bar  to  his  present  demand.  The  plaintiff  in- 
sisted that  this  release  was  fraudulently  obtained,  and  was  there- 
fore not  binding  on  the  plaintiff,  who  had  refused  to  receive  a  div- 
idend under  Connell' s  assignment. 

Two  points  were  reserved  on  the  trial.  1st.  How  far  the  al- 
leged fraud  would  affect  the  validity  of  the  release.  2d.  Whether 
the  deposition  of  Connell  was  admissible  in  evidence.  Besides 
these  reserved  points,  on  an  objection  made  by  the  defendants, 
to  a  question  proposed  by  the  plaintiff  to  Richard  C.  See,  a  wit- 
ness for  the  plaintiff,  the  question  was  overruled ;  and  this  forms 
another  ground  of  the  plaintiff's  motion  for  a  new  trial.  The 
second  reason  for  a  new  trial,  assigned  by  the  plaintiff,  does  not 
appear  to  be  correct  in  fact ;  and  the  4th  has  not  been  urged. 

The  first  question  is,  how  far  the  validity  of  the  release,  as  a 
bar  to  this  suit,  is  affected  by  the  alleged  fraud  in  its  procure- 
ment. It  is  contended  by  the  plaintiff,  that  Worley  &  Welsh 
were  at  the  time  of  the  sale  of  the  goods  for  which  this  action  is 
brought,  dormant  partners  of  Connell,  in  the  mercantile  house  in 
his  name  at  Pittsburg :  that  on  the  21st  June,  1829,  he  made  an 
assignment  of  all  his  estate,  goods,  debts,  &c.  to  Francis  Worley 
in  trust,  and  in  that  assignment  which  was  executed  by  Connell, 
of  the  one  part,  and  Francis  Worley,  of  the  other  part,  they  rep- 
resented Worley  &  Welsh  to  be  creditors  of  John  Connell,  and 
gave  them  a  preference  as  such,  to  the  amount  of  upwards  of 
eleven  thousand  dollars,  being  more  than  one-half  of  the  assets  of 
Connell ;  by  virtue  of  which  Worley  &  Welsh  received  that  sum, 
leaving  the  unpreferred  releasing  creditors  but  about  ten  per 
cent,  of  their  claims  :  that  it  was  a  fraud  in  the  parties  to  that 
assignment,  not  only  to  conceal  the  fact  of  the  partnership,  but, 
in  addition,  to  hold  out  Worley  &  Welsh  as  creditors,  when  they 
r*3Q71  wcre  Par*ners  w^tn  Connell,  and  co-debtors;  and  *to  en- 
able them  to  abstract  a  large  amount  of  money  from 
funds  that  ought  to  have  gone  to  creditors  ;  and  that  a  release 
procured  under  such  circumstances,  is  voidable  at  the  option  of 
the  party  imposed  upon. 

A  release  or  any  other  conveyance  obtained  by  fraud,  will  be 
set  aside  by  a  court  of  equity.  A  release  to  an  insolvent  under 


1836.]  OF  PENNSYLVANIA.  397 

(Carter  v.  Connell.) 

the  stipulations  contained  in  his  assignment,  is  subject  to  this  rule 
as  much  as  any  other.  While  on  the  one  hand,  the  assigning 
debtor  possesses  the  lawful  power  of  paying  such  creditors  first 
as  he  pleases,  and  of  stipulating  that  none  shall  receive  any  thing 
from  the  assigned  funds  unless  they  discharge  him  from  their 
claims  ;*  pn  the  other  hand  it  is  his  duty  to  make  a  fair  and  can- 
did statement  of  his  circumstances,  and  to  avoid  any  thing  like 
the  use  of  deception  or  unfair  dealing  to  obtain  a  discharge.  The 
creditors  in  general,  can  know  little  or  nothing  of  his  affairs ;  they 
must  rely  in  a  great  measure,  on  his  representations  of  his  situa- 
tion :  and  if  he  makes  false  representations  in  material  matters, 
and  there  be  mala  fides  in  so  doing,  by  means  of  which  the  cred- 
itors are  subjected  to  loss,  a  release  obtained  under  such  circum- 
stances, may  be  avoided.  This  principle  is  stated  in  various 
cases  ;  and  in  2  Eq.  Ca.  Ab.  379,  there  is  this  case  :  If  there  be 
two  dealers,  and  one  of  them  is  very  much  indebted  to  the  other, 
and  in  order  to  get  an  abatement  from  him,  he  makes  him  believe 
he  is  insolvent,  by  absconding,  skulking,  or  shutting  up  shop,  and 
thereby  procures  a  release  or  an  abatement,  when  in  truth  the 
man  is  really  solvent,  the  Court  will  relieve  against  such  release  ; 
and  this  was  agreed  to  have  been  done,  and  the  case  of  Bonny  v. 
Bonny ,  quoted  for  an  instance.  Secus^  if  the  party  had  not  just 
cause  to  fear  the  loss  of  his  debt. 

Now  the  case  here  supposed  is,  that  the  assignor  and  assignee 
combined  to  make  the  plaintiff  believe  that  Worley  &  Welsh  were 
creditors,  and  to  induce  him  to  ratify  an  assignment  by  which  they 
were  preferred  for  more  than  half  the  assets,  and  to  give  a  release 
by  which  they  are  forever  discharged  from  their  liability  to  him  ; 
and  that  the  plaintiff  is  to  be  bound  by  that  release,  notwithstand- 
ing it  should  aftenvards  turn  out  that  these  supposed  creditors 
were  in  fact  the  debtors,  that  the  money  abstracted  by  them  as  a 
preferred  debt,  was  in  justice  and  law,  the  property  of  the  plain- 
tiff and  other  creditors  ;  and  that  they  were  bound  not  only  to  re- 
fund that  money,  but  to  make  good  all  deficiencies.  It  is  impos- 
sible to  sustain  such  a  proposition.  Whether  the  ostensible 
partner  is  bound  to  disclose  the  name  of  a  dormant  partner, 
and  how  far  his  omission  to  do  so  would  render  the  latter  liable 
when  discovered,  notwithstanding  a  release  to  the  former,  it  is 
not  necessary  to  determine  ;  though  the  dicta  of  judges  in  the 
case  cited  from  Price's  Excheq.  Reports  are  pretty  strong  on 
the  point.  But  where  there  is  not  merely  a  suppressio  veri 
but  a  sugc/estio  fahi,  not  merely  a  suppression  of  the  name  of  a 
dormant  partner,  but  a  representation  that  he  is  a  creditor,  and  a 

*  Act  17th  Apr.  1843,  §  1,  P.  L.  273,  Pur.  Dig.  60,  §  2  ;  Act  16th  April, 
1849,  §  4,  P.  L.  664,  Pur.  Dig.  60,  §  3. 


398  SUPREME  COURT.  [March  Term, 

(Carter  «.  Connell.) 

r*qno-i  *course  of  conduct  calculated  to  mislead  the  creditors, 
J  and  to  divert  a  portion  of  the  funds  of  the  ostensible 
partner  into  the  hands  of  the  dormant  partner,  to  the  injury  and 
loss  of  the  creditors,  no  doubt  can  be  entertained  of  its  being 
deemed  in  law  fraudulent,  and  rendering  the  release  inoperative. 

It  has  been  suggested  that  supposing  the  preference  an  undue 
one,  the  only  consequence  would  be,  that  the  assignee  is  liable  for 
the  amount,  and  must  account  for  it  to  the  creditors,  but  the  re- 
lease remains  good.  If  the  creditor  chose  to  ratify  the  release, 
and  look  to  the  assignee  for  the  moneys  misapplied,  he  might  elect 
to  do  so.  But  he  may  also  elect  to  consider  a  release  fraudulently 
procured,  as  null  and  void,  and  be  remitted  to  his  original  rights. 
Even  with  the  restoration  of  the  abstracted  funds,  the  assigned 
estate  might  not  suffice  to  pay.  Besides,  the  creditors  ought  in 
justice  and  equity  to  have  received  the  proceeds  of  that  fund  as 
soon  as  realized.  It  would  be  exceedingly  unjust  and  oppressive 
if  after  detecting  an  imposition,  and  a  long  delay,  they  were  in  no 
better  situation  than  they  would  have  been  had  nothing  of  the 
kind  happened,  and  if  they  were  at  last  compelled  to  force  out  of 
the  assignee  what  should  have  passed  into  their  hands  in  the  regu- 
lar course  of  settlement  of  the  estate.  It  may  also  reasonably  be 
questioned  whether  any  release  would  have  been  given,  had  the 
circumstances  then  appeared  as  they  are  now  stated  to  be.  If 
then,  the  partnership  existed,  the  concealment  of  the  names  of  the 
dormant  partners,  connected  with  the  other  matters  alluded  to, 
gives  the  plaintiff  a  right  to  treat  the  release  as  a  nullity  ;  and  it 
is  not  a  bar  to  his  action. 

2.  Was  the  deposition  of  Connell  evidence  for  the  defendants  ? 
This  deposition  went  to  disprove  the  alleged  partnership  :  to  show 
its  dissolution  prior  to  the  sale  by  the  plaintiff ;  that  Worley  & 
Welsh  were  bona  fide  creditors  of  the  witness,  and  generally  to 
prevent  the  plaintiff's  recovery  ;  and  the  defendants  rely  on  the 
circumstance  of  Council's  not  being  served  with  process  in  this 
suit,  and  a  release  to  him  by  the  defendants,  prior  to  his  exami- 
nation, of  all  claim  or  demand  on  account  of  moneys  that  might 
be  recovered,  as  removing  the  objection,  that  he  is  a  partner.* 
The  contrary,  however,  was  decided  by  this  court  in  the  cases  of 
Marvin  v.  Bla<;k,  (2  Penn.  Rep.  138,)  and  MlCoy  v.  Liyhtner, 
(2  Watts,  347,)  and  the  same  point  was  determined  in  Youny  v. 
Bairner,  (1  Esp.  N.  P.  103,)  and  Simons  v.  Smith,  (1  Ry.  & 
Mood.  29,  21  Eng.  Com.  L.  Rep.  374.)  The  reason  is  that  a 
judgment  in  favor  of  the  plaintiff  would  authorize  a  payment  of 

*  1  Barr,  440  :  3  Id.  361 ;  4  Id.  200 ;  5  Id.  290 ;  9  Id.  25  ;  1  Casey,  386 ;  14 
Wright,  285,  454.  Not  applicable  in  actions  in  tort,  8  Casey,  364  ;  except 
ejectment,  12  Wright,  394.  Act  15th  April,  1869,  §  1,  P.  L.  30,  Pur.  Dig. 
Sup.  1566,  §1. 


1836.]  OF  PENNSYLVANIA.  .    398 

(Prescott  v.  Union  Insurance  Co.) 

this  debt  by  the  defendants,  out  of  the  partnership  funds,  or  it 
could  be  enforced  by  execution ;  which  would  not  be  the  case  if 
the  plaintiff  failed.  The  interest  of  the  witness  in  these  funds  as 
partner  is,  therefore,  directly  affected  by  the  result  of  the  suit. 
It  is  our  opinion,  that  the  deposition  was  inadmissible. 

3.  The  decision  of  the  second  point  renders  the  last  immaterial ; 
because  it  was  to  impeach  the  credit  of  Connell,  that  the  plaintiff 
*  offered  the  paper,  in  relation  to  which  the  question  r*qqcn 
objected  to  was  put.  At  the  same  time  we  have  no  *- 
doubt,  the  question  was  rightly  rejected.  If  a  witness  is  called  to' 
speak  to  handwriting,  and  possesses  a  knowledge  of  it,  from  having 
seen  the  person  write,  or  seen  his  writing,  he  ought  to  be  asked 
as  to  his  belief,  whether  the  paper  is  his  handwriting  or  not.  To 
inquire  of  a  witness  in  such  case,  what  is  his  impression,  is  de- 
scending to  a  test  too  vague  to  form  a  judgment  upon.*  It  is 
like*  asking  a  witness,  what  was  his  understanding  of  a  conversa- 
tion, instead  of  inquiring  what  the  parties  said.  The  rule  is 
stated  in  Phill.  Ev.  421 :  "  A  witness  may  be  asked,  whether  he 
has  seen  a  particular  person  write,  and  afterwards  whether  he 
believes  the  paper  in  dispute  to  be  his  handwriting." 

New  trial  awarded. 

Cited  by  Counsel,  2  Wharton,  135  ;  1  Watts  &  Sergeant,  337  ;  8  Id.  389  ; 
3  Barr,  155  ;  11  Harris,  156,  414 ;  4  Wright,  202 ;  Brightly,  440. 

Most  of  the  points  of  this  and  the  preceding  case  were  brought  up  again, 
and  affirmed,  in  2  Wharton,  542. 


[PHILADELPHIA,  APRIL  11,  1836.] 
PRESCOTT  against  The  UNION  INSURANCE  COMPANY. 

IN   ERROR. 

1 .  The  want  of  sea-worthiness  in  a  vessel,  at  the  commencement  of  the 
voyage,  will  be  a  sufficient  defence  to  the  insurers  on  the  vessel,  although 
she  arrived  in  safety  at  her  port  of  destination. 

2.  Where  the  question  was  as  to  the  sea-worthiness  of  a  vessel,  in  an  action 
by  the  insured  against  the  insurer,  and  there  being  no  contradictory  tes- 
timony as  to  the  facts,  the  judge  charged  the  jury  that  "  if  the  facts  are 
as  stated  in  the  protest,  that  the  vessel  began  to  leak  as  soon  as  she  began 
to  sail  or  soon  after,  and  continued  to  leak  up  to  the  time  of  the  storm, 
or  any  fortuitous  accident,  and  would  in  consequence  thereof  have  re- 
quired repairs  although  there  had  been  no  storm,  then  the  law  says  she 
was  unseaworthy,"  it  was  held  that  the  law  was  correctly  laid  down  to 
the  jury,  and  that  the  Court  was  right  in  not  leaving  it  to  the  jury  to 
presume  sea-worthiness  or  otherwise. 

*See  8  Watts,  411 ;  5  Watts  &  Sergeant,  337  ;  1  Harris,  646 ;  12  Id.  335. 


399  SUPREME  COURT  [March  Term, 

(Prescott  e.  Union  Insurance  Co.) 

THIS  was  a  writ  of  error  to  the  District  Court  for  the  City  and 
County  of  Philadelphia,  to  remove  the  record  of  an  action  of 
covenant  brought  in  that  Court  by  David  W.  Prescott  against  The 
Union  Insurance  Company  of  Philadelphia. 

The  action  was  upon  a  policy  of  insurance  for  $1500,  dated 
the  30th  of  June,  1830,  executed  by  the  defendants  upon  the 
f~*4nm  schooner  *James  Munroe,  at  and  from  Philadelphia,  to 
J-  the  Island  of  St.  Thomas,  and  back  to  a  port  in  the 
United  States,  with  liberty  of  St.  Jago  or  Porto  Rico.  The 
claim  was  for  a  partial  loss,  incurred,  as  the  plaintiff  alleged,  in 
consequence  of  a  gale  of  wind ;  and  the  only  question  was  the 
sea-worthiness  of  the  vessel. 

The  evidence  produced  on  the  trial  by  the  plaintiff  consisted  of 
the  deposition  of  the  captain  and  mate,  the  protest  made  by  them, 
the  report  of  the  surveyors  and  the  testimony  of  two  other  nauti- 
cal persons.  The  captain  testified  that  the  vessel  sailed  from 
Philadelphia  on  the  first  of  July,  1830,  that  she  was  then  sound 
and  sea- worthy.  From  the  4th  to  the  9th  of  July  she  leaked  so 
as  to  require  occasional  pumping.  On  the  9th  a  gale  of  wind 
came  on  with  a  heavy  sea,  by  which  the  leak  increased  consider- 
ably, making  300  strokes  per  hour,  carried  away  the  main-boom 
and  topping  lift,  the  vessel  straining  much  and  the  pumps  con- 
stantly going.  The  worst  of  the  gale  continued  about  36  hours. 
On  his  cross-examination  he  said,  that  the  leak  was  rather  increas 
ing  previously  to  the  gale,  but  never  so  as  to  cause  alarm.  If  a 
vessel  leaked  on  an  average  200  strokes  per  hour,  it  would  be  a 
great  state  of  leakiness :  if  250  strokes  per  hour,  it  would  have 
required  something  to  be  done  before  it  would  be  safe  to  go  to 
sea  again.  If  there  had  been  no  gale  and  she  had  continued  to 
leak  during  the  passage,  as  she  did  on  the  day  before  the  gale, 
then,  at  a  place  like  St.  Thomas,  he  would  have  considered  it 
best  and  necessary  to  have  her  looked  at  before  going  to  sea 
again.  With  a  cargo  such  as  fustic,  which  would  not  be  injured 
by  wet,  he  would  not  have  been  afraid  to  risk  himself  on  a  voyage 
home  in  her  again,  without  having  any  thing  done  to  her ;  but  he 
would  not  have  taken  a  cargo  of  ordinary  merchandize.  She  did 
not  leak  much  on  her  homeward  voyage.  She  had  been  caulked 
on  deck  and  under  deck  at  St.  Thomas.  The  protest  which  was 
sworn  to  at  St.  Thomas,  on  the  20th  of  August,  1830,  set  forth 
the  copy  of  the  log  book,  from  which  it  appeared  that  the  vessel 
left  the  capes  of  the  Delaware  on  the  4th  of  July,  on  which  day 
they  had  pumped  the  ship  every  half  hour.  On  the  5th  the  same 
entry  appeared,  "  she  making  at  her  pumps  200  strokes  per  hour 
on  an  average."  On  the  8th  it  is  said,  "  we  find  our  leak  increas- 
ing, it  having  required  250  strokes  at  the  pump  every  half  hour ; 
therefore,  we  pump  ship  every  15  minutes." 


1836.]  OF  PENNSYLVANIA.  400 

(Prescott  v.  Union  Insurance  Co.) 

commenced,  during  which  the  pump  made  300  strokes  per  half 
hour,  and  on  the  next  day  the  ship  was  pumped  every  5  minutes. 
On  the  12th  of  August  site  arrived  at  St.  Thomas,  where  a  sur- 
vey was  held  upon  her.  The  surveyors  reported  that  they  "  found 
her  very  open  outside  and  in,  above  water,  found  the  partners  of 
her  mast  much  strained,  and  the  brake  of  her  quarter  deck  open," 
and  they  recommended  "  her  being  caulked  and  paid  inside  and 
out,  the  stern  sheathed,  her  chain  bolts  backed  out  and  made 
larger,  her  sails  repaired,  and  two  coils  of  rigging  furnished  for 
halyards  and  lanyards."  She  was  accordingly  repaired  at  an 
expense  *of  $187  68.  A  captain  of  a  vessel,  called  on  PMA-I-I 
the  part  of  the  plaintiff,  said,  that  he  did  not  know  that  L 
he  should  consider  200  strokes  per  hour  as  any  thing  more  than 
common  leaking.  He  had  been  in  vessels  that  required  that 
quantity  of  pumping,  and  would  not  consider  them  unseaworthy, 
and  he  had  been  in  a  vessel  that  leaked  at  the  rate  of  250  strokes 
in  an  hour,  without  being  afraid  to  go  in  her.  Another  nautical 
witness  testified  to  instances  of  vessels  leaking  250  to  300  strokes 
per  hour,  that  were  otherwise  sound.  On  the  part  of  the  defend- 
ant a  witness  was  called,  who  said  he  had  been  a  dispacheur  for 
17  years,  and  upon  the  facts  stated  in  the  protest  would  consider 
the  vessel  unseaworthy. 

The  evidence  having  been  closed,  the  Judge  charged  the  jury 
as  follows : 

"This  is  a  mere  question  of  property  to  be  decided  without 
excitement  and  according  to  law  and  evidence.  But  for  what 
has  fallen  from  counsel,  I  would  not  caution  the  jury  on  this 
head.  The  counsel,  it  is  true,  disclaim  all  intention  to  prejudice 
the  jury,  or  to  allege  that  a  different  view  is  to  be  taken  of  the 
rights  of  an  individual  from  that  which  would  be  taken  of  the 
rights  of  an  incorporated  company ;  but  yet,  the  remarks  of 
counsel  have  had  such  a  tendency,  that  I  feel  it  my  duty  to  make 
these  observations,  however,  I  may  regret  the  necessity  of  doing 
so. 

Insurance  is  a  contract,  whereby,  for  a  stipulated  consideration 
called  a  premium,  one  party,  called  the  insurer,  undertakes  to  in- 
demnify the  other,  called  the  insured,  against  certain  risks. 

The  subject  in  the  present  case  was  the  ship,  being  a  schooner, 
called  the  James  Munroe ;  the  risk  insured  against  and  now  in 
question,  the  perils  of  the  sea. 

The  voyage  was  a  voyage  from  Philadelphia  to  St.  Thomas. 

The  claim  is  for  a  partial  loss  alleged  to  have  been  occasioned 
by  the  perils  of  the  sea. 

Good  faith  is  the  basis  of  this  contract ;  and  the  mere  act  of 
effecting  insurance  is  a  pledge  on  the  part  of  the  assured  that 
certain  facts  are  true ;  thus,  where  the  parties  have  omitted  to 


401  SUPREME  COURT  [March  Term, 

(Prescott  V.  Union  Insurance  Co.) 

say  anything  about  sea-worthiness,  the  mere  effecting  the  policy 
carries  with  it  an  implied  warranty  on  the  part  of  the  insured, 
that  the  vessel  is  sea-worthy.  If  it  t\*rns  out  that  the  ship  was 
not  sea-worthy  at  the  commencement  of  the  risk,  the  condition  on 
which  the  liability  of  the  underwriter  depends,  is  forfeited ;  and  it 
is,  so  far  as  the  responsibility  of  the  insurer  goes,  as  if  no  contract 
has  been  made  :  and  this  is  true,  whether  the  unseaworthiness 
were  known  to  the  insured  or  not.  It  is  not  necessary  to  impute 
a  fraud  to  him.  The  rule  is  the  same,  even  though  the  unsea- 
worthiness arises  from  some  latent  defect  which  the  assured  had 
no  knowledge  of,  and  could  not  have  discovered  or  prevented. 
f*402T  *These  principles  are  well  settled :  they  are  founded 
•I  in  good  reason,  having  in  view  the  protection  of  life  and 
property. 

The  idea  of  sea-worthiness  is  not  limited  to  the  sufficiency  of 
the  vessel  merely  to  save  the  lives  of  the  persons,  who  may  be  on 
board,  but  extends,  also,  to  her  sufficiency  for  the  safety  of  the 
property  on  board  of  her.  The  vessel  must  be  sufficiently  staunch 
and  sound  for  the  employment  and  situation,  intended  by  the  in- 
surance. She  must  be  in  a  suitable  and  fit  condition  to  carry  the 
cargo  put  on  board,  or  intended  so  to  be. 

It  is  not  disputed,  that  on  the  arrival  of  the  schooner  at  St. 
Thomas,  certain  necessary  repairs  were  made,  and  that  they,  with 
incidental  expenses,  amounted  to  $204  68 ;  the  sum  which  with 
interest  is  claimed  by  the  plaintiff  in  this  suit. 

The  defence,  here,  is,  that  the  vessel  was  unseaworthy  at  the 
commencement  of  the  voyage ;  and  the  defendant's  counsel  con- 
tend, that  the  testimony  in  the  case  fully  proves  this.  It  is  clear 
that  the  underwriters  are  not  liable  for  the  wear  and  tear  of  the 
voyage ;  the  mere  ordinary  working  and  straining  of  the  vessel, 
any  more  than  for  an  insufficiency  or  inherent  defect  in  her.  A 
portion  of  the  repairs,  as  appears  by  one  of  the  vouchers  pro- 
duced by  the  plaintiff,  was  in  consequence  of  leaking  or  springing 
a  leak ;  and  in  such  a  case,  the  law  lays  down  certain  rules,  which 
are  obligatory  upon  the  parties,  and  which  are  to  be  enforced  by 
courts  and  juries. 

Though  the,  general  presumption  of  the  law  is,  that  the  vessel 
is  sea-worthy  and  the  party  alleging  unseaworthiness,  must,  in 
most  cases,  show  it :  yet  where  springing  a  leak  has  given  occa- 
sion for  the  repairs,  the  burthen  of  proof  is  thrown  upon  the  in- 
sured: as  repairs,  from  such  a  cause,  are  not  usually  considered 
as  covered  by  the  liability  of  the  underwriters.  The  assured 
must,  in  such  a  case,  show  that  the  damage,  for  which  he  has  a 
claim,  is  the  direct  effect  of  a  fortuitous  accident.  In  the  absence 
of  such  proof,  the  springing  a  leak  is  to  be  attributed,  either  to 
the  working  and  straining  of  the  vessel,  which  is  the  wear  and 


1836.]  OF  PENNSYLVANIA.  402 

(Prescott  v.  Union  Insurance  Co.) 

tear  of  the  voyage,  or  to  some  insufficiency  or  inherent  defects  ; 
for  neither  of  which,  are  the  underwriters  liable  ;  and  if  a  vessel 
spring  a  leak  soon  after  the  risk  commences,  without  any  apparent 
cause  from  the  perils  insured  against,  especially  when  it  satisfac- 
torily appears,  that  no  accident  happened  to  occasion  the  damage 
or  defect,  the  marine  law  infers,  that  she  was  defective  at  the  be- 
ginning of  the  risk  and  not  sea-worthy.  The  rule  must  be  at  least 
as  strong  where  the  leak  commenced  ^yith,  and  continued  through 
the  voyage.  If  the  vessel  was  unseaworthy  at  the  commence- 
ment of  the  risk,  it  is  immaterial  whether  or  not  the  subsequent 
injury  was  in  any  degree  occasioned  by  the  storms  or  gales  men- 
tioned in  the  protest.  If  the  case  in  1  Johns.  241,  is  opposed  to 
these  principles,  it  is  not  law  with  us.  It  could  be  distinguished, 
however,  from  a  case  like  the  present :  but  it  is  unnecessary  to 
point  out  the  differences. 

*Then  what  are  the  facts  here  ?  [~*4031 

The  protest  is  by  our  law  evidence  ;  but  it  is  liable  to     L 
explanation  ;  and  the  formal  printed  part  of  it  is  not  to  be  allowed 
weight  against  the  substantial  and  written  part  of  it,  and  the  testi- 
mony of  the  persons,  who  signed  it,  when  taken  according  to  law, 
subject  to  cross-examination. 

The  power  of  the  jury  relates  to  the  facts.  The  extent  to 
which  it  may,  with  propriety,  be  exercised,  can  hardly,  I  presume, 
form  the  subject  of  controversy.  If  thie  facts  are  clear  and  un- 
disputed, and  the  law  has  laid  down  rules  for  the  government  of 
us  all,  in  regard  to  such  state  of  facts,  all  appeals  to  the  jury  to 
disregard  the  law,  as  explained  by  the  Court,  are  to  be  avoided  ; 
inasmuch  as  they  impute  to  a  jury  a  disposition  to  set  up  a  stand- 
ard for  themselves,  different  from  that  by  which  all  classes  of  men 
are  protected  in  a  civilized  and  enlightened  community,  and  are 
positively  mischievous,  if  responded  to  in  the  spirit  in  which  they 
are  made  ;  because  the  law  will  not  lend  itself  to  sustain  such  an 
answer ;  and  the  parties  are  necessarily  put  to  the  trouble  and 
expense  of  another  investigation,  where  the  law  most  assuredly  will 
control  every  branch  of  the  tribunal,  which  it  has  created  to  carry 
out  its  own  purposes. 

If  the  facts  are  as  stated  in  the  written  protest — that  the  ves- 
sel began  to  leak  as  soon  as  she  began  to  sail,  or  soon  after,  and 
continued  to  leak  up  to  the  time  of  the  storm,  or  any  fortui- 
tous accident,  (and  would,  in  consequence  thereof,  have  required 
repairs,  although  there  had  been  no  storm,)  then  the  law  says, 
she  was  unseaworthy,  and  the  defendants  are  not  liable  in  this 
suit.  If  there  were  any  other  facts  contradicting  these,  you 
might  certainly  weigh  them,  and  find  accordingly,  and  if  they 
satisfied  you,  that  the  vessel  was  sea-worthy  at  the  commence- 

VOL.  i. — 27 


403  SUPREME  COURT  \_March  Term, 

(Prescott  t.  Union  Insurance  Co.) 

ment  of  the  voyage,  a  different  result  would  be  required.     In  the 
absence  of  such  other  facts,  the  rule  of  law  must  prevail." 

The  jury  after  being  out  some  time  returned,  and  inquired  of 
the  Court : — 

"  Whether  the  law  pronounces  the  fact  of  the  vessel  leaking 
at  the  time  of,  or  soon  after  her  leaving  port,  decisive  of  the 
question  of  her  sea-worthiness  ;  or  whether  this  question  is  left 
open  for  the  jury  to  decide  from  their  judgment  on  all  circum- 
stances." 

The  Court  answered  as  follows : — "If  the  facts  are,  as  stated 
in  the  written  protest,  that  she  began  to  leak  as  soon  as  she  be- 
gan to  sail,  or  soon  after,  and  continued  to  leak  up  to  the  time  of 
the  storm  or  any  fortuitous  accident,  (and  would,  in  consequence 
thereof,  have  required  repairs,  although  there  had  been  no  storm,) 
then  the  law  says,  she  was  unseaworthy." 

The  jury  thereupon  found  for  the  defendants,  and  the  plaintiff 
r*4041     *t°ok  a  writ  of  error,  and  having  removed  the  record  to 
J     this  Court,  assigned  the  following  errors  : — 

"  The  Court  below  erred  in  their  charge  to  the  jury  in  the  fol- 
lowing points : 

First.  That  when  springing  a  leak  has  given  occasion  to  re- 
pairs, the  burthen  of  proof  of  seaworthiness  is  on  the  insured,  as 
such  repairs  are  not  usually  considered  as  covered  by  the  policy  : 
the  insured  must  show  that  the  damage  is  the  direct  effect  of  acci- 
dent. 

Second.  That  if  a  vessel  spring  a  leak  soon  after  the  risk  com- 
mences, without  any  apparent  cause,  the  law  infers  unseaworthi- 
ness at  the  beginning  of  the  risk,  and  the  subsequent  injuries  by 
storm  are  immaterial. 

Third.  That  the  printed  formal  part  of  the  protest  is  to  have 
no  weight  against  the  substantial  and  written  part,  and  the  testi- 
mony of  those  who  signed  it. 

Fourth.  That  if  the  facts  are,  as  stated  in  the  written  protest, 
that  the  vessel  began  to  leak  as  soon  as  she  began  to  sail,  or 
soon  after,  and  continued  to  leak  up  to  the  time  of  the  storm, 
and  would,  in  consequence  thereof,  have  required  repairing, 
although  there  had  been  no  storm,  then  the  law  says,  she  was 
unseaworthy. 

Fifth.  The  Court  erred  in  taking  from  the  jury  indirectly  the 
decision  of  the  facts  : 

1st.  By  censuring  the  plaintiff's  counsel  for  addressing  the 

jury  as  the  judges  of  the  fact  of  sea- worthiness. 
2d.  By  the  whole  tenor  and  drift  of  the  charge,  assuming 
to  the  Court  the  decision  of  that  question  upon  their 
view  of  the  facts  as  one  of  mere  law. 


1836.]  OF  PENNSYLVANIA.  404 

(Prescott  v.  Union  Insurance  Co.) 
3d.  By  restricting  the  jury  to  the  facts  stated  in  the  written 

part  of  the  protest. 
4th.  By  putting  these  facts  to  the  jury  as  clear  and  uncon- 

tradicted,  and  as  establishing  unseaworthiness. 
5th.  By  intimating  to  the  jury,  that  a  verdict  against  the 
Court's   opinion  on  the   question   of  seaworthiness, 
would  be  nugatory. 

Sixth.  The  answer  of  the  judge  to  the  question  by  the  jury 
was  evasive.  The  question  was  direct ;  "  Whether  the  law  pro- 
nounces the  fact  of  a  vessel  leaking  at  the  time  of,  or  soon  after 
her  leaving  port,  decisive  of  the  question  of  sea- worthiness." 
This  should  have  been  answered  "  yes  "  or  "  wo."  But  the  judge 
complicates  his  answer  with  the  circumstance  of  her  requiring  re- 
pairs, and  leaves  the  actual  question  unanswered,  except  by  im 
plication. 

Seventh.  The  judge  erred  in  stating  in  his  charge  as  applicable 
to  this  subject,  "  that  the  idea  of  sea-worthiness  is  not  limited  to 
the  sufficiency  of  the  vessel  merely  to  save  the  lives  of  the  per- 
sons, who  *may  be  on  board,  but  extends  also  to  her  suffi-  rjMnc-i 
ciency  for  the  safety  of  the  property  on  board  of  her." 

Mr.  F.  W.  Hubbell  and  Mr.  Holy  for  the  plaintiff  in  error. 

The  question  is,  whether  the  circumstances  of  a  vessel  being 
leaky  is  sufficient  to  deprive  the  insured  of  compensation  for 
injury  suffered  by  reason  of  a  storm.  The  judge  ought  to  have 
left  the  question  of  sea-worthiness  to  the  jury  as  one  of  fact,  in- 
stead of  deciding  it  as  a  matter  of  pure  law.  Even  as  a  question 
of  mere  law  there  is  error  in  the  charge.  Had  this  been  an 
insurance  on  the  cargo,  it  would  have  been  right ;  but  the  in- 
surer on  the  ship  had  nothing  to  do  with  her  capability  to  trans- 
port a  cargo  of  flour  without  damage.  The  true  proposition  is, 
was  the  vessel  sufficient  for  her  own  preservation.  There  is 
error  in  the  answer  to  the  application  of  the  jury.  They  ought 
to  have  been  told,  that  if  the  vessel  was  leaky  to  such  an  extent 
as  to  require  repairs,  she  should  be  considered  unseaworthy. 
There  is  no  authority  to  support  the  position,  that  a  leak  makes 
a  vessel  unseaworthy.  The  experience  of  the  nautical  witnesses 
proves,  that  this  cannot  be  the  case.  It  will  be  found  that  in 
all  the  cases,  "  sea-worthiness  "  and  "  navigability  "  are  converti- 
ble terms.  Bell  v.  Read,  (4  Binn.  130  ;)  Cormack  v.  Gladstone, 
(11  East,  346  ;)  1  Condy's  Marshal,  154,  476  ;  Park  on  Ins. 
220, 221,  n.  ;  Patrick  v.  Hatty,  (1  Johns.  Rep.  244  ;)  11  Picker. 
Rep.  56  ;  Taylor  v.  Lowell,  (3  Mass.  Rep.  344 ;)  Barnwell  v. 
Church,  (1  Games'  Rep.  246  ;)  1  Strange,  127 :  Talcott  v.  Ins. 
Co.  (2  Johns.  Rep.  75.) 


405  SUPREME  COURT.  [March  Term, 

• 

(Prescott  v.  Union  Insurance  Co.) 
Mr.  Cadwalader  and  Mr.  J.  C.  Biddle,  contra. 
This  case  was  decided  mainly  upon  the  plaintiff's  own  evi- 
dence. The  effort  was  to  make  the  question  of  sea-worthiness, 
which  is  a  mixed  one  of  law  and  fact,  altogether  a  matter  for  the 
jury  ;  which  the  judge  resisted  ;  and  his  course  in  this  respect  is 
sanctioned  by  the  authorities.  BusheVs  case  (Vaughan's  Rep. 
144 ;)  Oneby's  case,  (2  Ld.  Raym.  1484 ;)  Pfoutz  v.  Steel,  (2 
Watts,  413,  14  ;)  Crist  v.  Brindle,  (2  Penn.  Rep.  262  ;)  Fran- 
ciscus  v.  Reigart,  (MS.;)*  Stewart  v.  Stacker,  (1  Watts,  141,  2;) 
Malson  v.  Fry,  (1  Watts,  433  ;)  Riddle  v.  Murphy,  (1  Sergeant 
&  Rawle,  237,  8  ;)  9  Peters'  Rep.  567,  8;  Baker  v.  Lewis,  (4 
Rawle,  357  ;)  Kingston  v.  Leslie,  (10  Serg.  &  R.  389,  90 ;) 
Johnson  v.  Gray,  (16  Serg.  &  R.  366;)  Somerville  v.  Holliday, 
(1  Watts,  516,  17  ;)  Star  v.  Bradford,  (2  Penn.  Rep.  398 ;) 
Commonwealth  v.  Henderson,  (1  Penn.  Rep.  401 ;)  9  Cowen, 
225;  Fox  v.  Clifton,  (9  Bingh.  115.)  Then  upon  the  law  of 
this  case,  the  charge  was  in  conformity  with  the  opinions  of  the 
best  text-writers,  and  the  decisions  of  the  Court.  When  the 
vessel  is  shown  to  be  defective,  the  burden  of  proof,  that  she 
was  sea-worthy,  rests  upon  the  insured :  1  Marshal,  156  ;  Parke, 
221,  n. ;  Stephens,  152  ;  Benecke,  455  ;  1  Phillips  on  Ins.  116, 

17  *»  Holt  on  ShiPPing>  *303  5  1  Dow's  ReP-  342>  344  J 
Talcott  v.  Com.  Ins.  Co.  (2  Johns.  128, 130;)  Annen  v. 

Woodman,  (3  Taunt,  299 ;)  Sell  v.  Read,  cited  on  the  other 
side,  was  a  question  of  bailment  disconnected  with  the  doctrine 
of  insurance  ;  and  in  the  recent  case  of  If  art  v.  Allen,  (2  Watts, 
119,)  the  present  Chief  Justice  has  shown,  that  the  Nisi  Prius 
opinion  of  Judge  Brackenridge  was  not  sustained  by  the  Court 
in  bank.  There  is  no  such  distinction  as  that  contended  for  on 
the  other  side,  between  the  sufficiency  of  a  vessel  for  self-preser- 
vation and  for  the  preservation  of  the  cargo.  Abbott  v.  Brown, 
(1  Caines'  Rep.  292 ;)  2  Phillips  on  Ins.  110 ;  Hughes  on  Ins. 
205. 

The  opinion  of  the  Court  was  delivered  by 

SERGEANT,  J. — The  legal  principles  in  relation  to  sea-worthi- 
ness of  vessels  insured,  are  clearly  and  succinctly  stated  in  the 
opinion  of  the  (now)  President  of  the  District  Court,  brought  up 
with  tthis  record.  The  plaintiff  insists,  that  the  doctrine  on  the 
subject  is  not  applicable  to  the  present  case.  He  admits  the 
law  to  be,  as  laid  down  in  the  authorities,  that  if  a  vessel  sails 
on  her  voyage,  and  in  a  day  or  two,  becomes  leaky,  and  found- 
ers, or  is  obliged  to  return  to  port,  without  any  storm,  or  visi- 
ble or  adequate  cause  to  produce  such  an  effect,  the  presumption 

*  Reported,  4  Watts,  98. 


1836.]  OF  PENNSYLVANIA.  406 

(Prescott  v.  Union  Insurance  Co.) 

is,  that  she  was  not  sea-worthy  when  she  sailed.  Munro  v. 
Vandum,  (Park's  Ins.  224 ;)  Talcott  v.  Marine  Ins.  Co.  (2 
Johns.  Rep.  124.)  But  he  contends,  that  if  she  perform  the 
voyage,  and  arrive  at  her  port  of  destination,  she  is  to  be  deemed 
sea-worthy,  as  between  the  insurer  and  the  insured  on  the  vessel, 
whether  such  leakiness  has  occurred  or  not.  This  would  sub-' 
vert  the  rule  as  to  sea-worthiness  altogether,  and  make  it  de- 
pend not  on  the  state  and  condition  of  the  vessel  at  the  time  she 
sails,  but  on  the  event.  It  would  substitute  an  unfair  and  dan- 
gerous test,  in  lieu  of  the  wise  and  salutary  requisitions  imposed 
by  the  law ;  for  the  best  provided  vessel  may  meet  with  misfort- 
une, and  founder  at  sea,  or  be  compelled  to  return  to  port.  On 
the  other  hand,  a  weak  and  insufficient  ship  may  attempt  the 
voyage,  to  the  imminent  danger  of  the  lives  and  property  on 
board,  and  yet  escape  destruction  almost  by  a  miracle.  It  is  not 
by  events,  that  human  affairs  are  to  be  judged.  Experience 
teaches  us,  that  in  a  vast  majority  of  these  cases,  unless  due  pre- 
cautions are  taken,  disasters  will  ensue :  and  therefore  the  law  re- 
quires it  of  the  insured,  as  a  condition  precedent  to  the  attaching 
of  the  contract  of  insurance,  that  the  vessel  at  her  departure  from 
port  be  tight,  staunch,  and  strong,  well  fitted,  manned,  and  pro- 
vided with  all  necessary  requisites,  to  meet  the  perils  of  the  ocean, 
which  she  is  to  encounter  in  her  voyage.  And  the  inquiry  is  not, 
after  the  voyage  is  ended,  has  she  escaped  notwithstanding  a  gross 
neglect  of  all  that  prudence  dictated  for  her  preservation  ;  but  was 
she  equipped  and  fitted  out  as  she  ought  to  have  been.  If  she  was 
not,  she  was  not  sea- worthy, — not  worthy  or  fit  to  go  to  sea  ;  not  in 
a  condition  *to  meet  and  resist  its  perils.  A  contrary  r*4ft7n 
doctrine  would  tend  to  throw  on  the  insurer  the  expense 
of  repairs,  which  the  insured  himself  ought  to  have  disbursed 
before  the  vessel  sailed.  Besides,  a  vessel  tight,  staunch,  and 
strong,  and  in  good  sailing  condition,  will  pass,  without  harm, 
through  assaults  which  would  materially  damage  a  .leaky  and 
infirm  ship.  The  latter  is  not  only  less  able  to  resist  the  shocks 
of  the  winds  and  waves,  but  the  crew  are  exhausted  by  the  neces- 
sity of  pumping,  and,  therefore,  incapable  of  performing  their 
duty,  when  great  exertions  become  necessary.  She  is  not,  there- 
fore, so  well  manned  as  she  otherwise  would  be.  Nor  is  it  wise 
or  safe  to  tempt  owners  and  shippers  to  run  into  danger,  when 
unprovided  to  meet  it.  The  disasters  of  mariners,  not  unfre- 
quently  of  the  most  dreadful  and  appalling  character,  ought  not 
to  be  multiplied,  by  stimulating  them  into  unnecessary  experi- 
ments, how  far  they  dare  venture  in  a  leaky  vessel.  The  law 
casts  her  mantle  of  protection  over  them,  as  well  as  the  interests 
of  the  shipper,  by  declaring  that  no  insurance  on  the  vessel  is 
valid,  if  she  is  put  to  sea  in  an  unseaworthy  state ;  and  it  is  of 


407  SUPREME  COURT  [March  Term, 

(Prescott  0.  Union  Insurance  Co. ) 

importance  to  the  great  interest  embarked  in  commerce,  as  well 
as  to  the  preservation  of  life,  that  the  requisitions  of  the  law  in 
this  respect  should  not  be  relaxed.  The  owner  should  be  obliged 
to  perform  his  duty,  and  be  induced  to  attend  to  that,  which  he 
alone  can  attend  to,  the  state  and  condition  of  his  vessel,  and  to 
place  her,  under  the  guaranty  of  the  policy,  in  a  condition  fitted 
to  meet  those  perils  of  the  sea,  which  the  insurer  takes  upon  him- 
self. If  he  does  not,  he  throws  on  the  insurer  other  perils  not 
within  the  contract :  perils  which  do  not  the  less  exist,  because, 
by  good  fortune,  they  may  happen  not  to  prove  fatal :  and  which 
may,  of  themselves,  produce  an  average  loss,  without  foundering 
the  ship  or  defeating  the  voyage.  If  the  owner  does  not  choose 
to  do  this,  or  even  if  it  occur  without  his  knowledge  or  default, 
(and  the  same  rule  applies  to  policies  on  goods,)  there  is  no  con- 
tract :  the  consideration  fails,  and  the  risk  remains  with  the  party 
himself.  We  are,  therefore,  of  opinion,  that  the  doctrine  is  appli- 
cable, notwithstanding  the  vessel  reaches  her  port  of  destination ; 
if  it  sufficiently  appear  by  the  evidence,  that  the  vessel  sailed  in  a 
leaky  state,  and  in  want  of  repairs.  And  this  is  the  point  of 
view  in  which  the  Court  below  put  the  case  to  the  jury. 

2.  Nor  is  there  any  foundation  for  the  complaint,  that  the 
Court  took  the  facts  from  the  jury,  or  assumed  more  than  they 
ought  legally  to  have  done  in  charging  them.  The  Court  applied 
the  rule  of  law  to  the  facts  as  they  appeared,  at  the  same  time 
instructing  the  jury,  that  if  there  were  contradictory  facts,  they 
might  consider  them,  and  the  result  would  be  different.  There 
were,  however,  no  contradictory  facts  shown,  and  the  Court  would 
have  erred  to  leave  it  to  the  jury  to  presume  facts,  without  any 
evidence,  from  which  such  presumption  could  legally  be  drawn. 
"  To  submit  a  fact  destitute  of  evidence,"  says  C.  J.  Gibson,  in 
l"*4081  Stouffer  v.  Latshaw,  (2  Watts,  167,)  "  as  *one  that 
J  may  nevertheless  be  found,  is  an  encouragement  to  err, 
which  cannot  be  too  closely  observed,  or  unsparingly  corrected." 
To  the  same  effect,  is  the  opinion  of  the  Court  delivered  by  Mr. 
Justice  Rogers  in  Star  v.  Bradford,  (2  Penn.  Rep.  398.)  Here 
the  evidence  was  clear,  that  from  her  departure,  this  vessel,  with 
constant  light  breezes,  leaked  ;  that  the  leak  continued  increasing 
for  nine  days,  so  that  the  hands  were  obliged  to  pump,  at  first, 
every  hour,  then  every  half  hour,  and  then  every  fifteen  minutes : 
afterwards  a  storm  commenced,  and  the  vessel  labored  much, 
and  shipped  great  quantities  of  water,  till  they  had  to  pump  every 
five  minutes,  and  she  continued  very  leaky,  damaging  the  cargo, 
until  her  arrival.  No  evidence  was  given  by  the  insurer  to 
account  for  this  state  of  the  ship :  there  was  no  violence  of  wind 
or  wave  till  the  9th  day :  there  was  not  time  for  the  ordinary 
working  and  straining  of  the  timbers  to  produce  a  leak :  and  the 


1836.]  OF  PENNSYLVANIA.  408 

(Vanarsdale  v.  Richards.) 

inevitable  presumption  is,  that  she  had  an  inherent  defect  at  the 
time  of  sailing.  This  is  the  legal  presumption,  and  so  stated  in 
the  authorities,  and  elementary  writers,  and  the  Court,  in  laying 
down  the  law  to  the  jury,  could  do  no  otherwise  than  state  that 
legal  presumption  on  the  facts  existing.  Upon  the  whole,  the 
charge  of  the  Court  is,  in  the  opinion  of  this  Court,  correct,  and 
the  judgment  must  be  affirmed. 

Judgment  affirmed. 

Cited  by  Counsel,  4  Wharton,  65  ;  3  Watts  &  Sergeant,  150 ;  2  Jones, 
394 ;  9  Harris,  209. 
See  also,  2  Casey,  192. 


[PHILADELPHIA,  APRIL  12,  1836.] 
VANARSDALE  against  RICHARDS. 

Where  an  assignment  has  been  made  for  the  benefit  of  creditors,  an  action 
cannot  be  maintained  by  one  of  the  creditors  against  the  assignees,  until 
the  accounts  of  such  assignees  have  been  settled  in  the  Common  Pleas, 
and  a  decree  made  by  that  Court  for  distribution  ;  and  the  rule  is  the 
same,  whether  the  action  is  for  money  had  and  received,  or  upon  aver- 
ment of  misconduct  and  mismanagement  on  the  part  of  the  defendants. 

THIS  was  an  action  on  the  case  brought  by  Aaron  Vanarsdale 
to  the  use  of  William  Stell,  trustee  of  Hannah  Vanarsdale,  against 
Samuel  Richards,  who  survived  George  Billington,  assignee  of 
Robert  E.  Gray. 

The  declaration  contained  counts  for  money  had  and  received, 
work  and  labor,  &c.  and  on  an  account  stated,  and  a  special  count 
*for  mismanaging  the  trust  estate,  &c.  to  the  prejudice  r#  , nQ1 
of  the  plaintiff. 

The  case  was  tried  before  Mr.  Justice  Kennedy,  at  a  Court  of 
Nisi  Prius  held  in  Philadelphia,  on  the  10th  of  December,  1835. 

It  appeared  in  evidence,  that  the  plaintiff  was  a  creditor  of 
Robert  E.  Gray,  who,  on  the  20th  of  August,  1818,  made  an 
assignment  of  all  his  estate  and  effects  to  Samuel  Richards  and 
George  Billington,  upon  the  usual  trusts,  viz.  to  sell,  or  other- 
wise dispose  of  the  assigned  estate,  and  distribute  the  proceeds 
among  such  creditors  as  should  execute  a  release  to  the  assignor. 
The  plaintiff  complied  with  the  condition  by  executing  a  release 
within  the  required  time.  On  the  1st  of  March,  1824,  Richards 
and  Billington  conveyed  the  estate  to  Samuel  N.  Gray.  In  1825, 
a  citation  was  issued  from  the  Court  of  Common  Pleas,  at  the 
instance  of  the  plaintiff,  Vanarsdale,  to  Billington,  the  assignee : 
in  obedience  to  which  he  settled  an  account  of  his  receipts  and 


409  SUPREME  COURT  [March  Term, 

(Vanarsdale  v.  Richards.) 

payments  as  assignee.     It  did  not  appear,  that  Richards  had  set- 
tled any  accounts. 

Upon  these  facts,  the  learned  Judge  being  of  opinion,  upon  the 
authority  of  a  case  decided  at  the  last  term  at  Pittsburgh,*  that 
the  action  could  not  be  maintained,  the  plaintiff's  counsel  sub- 
mitted to  a  nonsuit,  with  leave  to  move  in  bank  to  take  it  off. 

A  motion  having  accordingly  been  made:  Mr.  Randall,  for 
the  plaintiff,  admitted  that  the  recent  decisions  of  the  Court,  in 
Rush  v.  G-ood,  (14  Serg.  &  R.  230,)  and  Gray  v.  Bell,  settled 
the  question,  that  assumpsit  for  money  had  and  received,  &c. 
would  not  lie  against  assignees,  to  recover  a  proportion  of  the 
fund,  until  a  settlement  of  their  accounts  had  been  duly  made  in 
the  proper  office  ;  but  he  endeavored  to  distinguish  this  case  from 
those  decided:  the  present  action  charging  the  defendants  with 
tortious  conduct  in  respect  to  the  sale  of  the  property,  &c.  Mr. 
Randall,  also  cited  a  case  of  MlLeod  v.  Latimer,  (MS.^)  decided 
by  this  .Court  in  1826,  where  an  action,  by  a  creditor  against 
assignees  to  recover  a  proportionate  share  of  the  fund,  was  sus- 
tained; although  he  admitted  that  the  objection  was  not  there 
taken.  | 

Mr.  Tilghman  and  Mr.  Peters,  for  the  defendants,  relied  on 
the  two  cases  above  stated. 

PER  CURIAM.  —  The  trust  involved  in  this  assignment,  is  pecu- 
liarly a  subject  of  equitable  cognizance  ;  and  though  an  actual 
want  of  chancery  powers  might  compel  us  to  sustain  an  a«tion  at 
law  in  the  first  instance,  it  does  not  follow,  that  a  cestui  que  trust 


41  01  n°t  *be  thrown  on  his  equitable  resources,  where 

-"     such   have  been  provided  for  him.     We  consider   the 
point  to  have  been  already  decided. 

Mr.  Randall  took  nothing  by  his  motion. 

Cited  by  Counsel,  10  Watts,  62  ;  9  Harris,  294  ;  7  P.  F.  Smith,  228. 
Cited  by  the  Court,  6  Watts  &  Sergeant,  256  ;  7  Id.  30  ;  12  Harris,  486. 

*Qray  v.Bell,  (J/&)  This  case  will  be  reported  by  Mr.  Watts  in  his  4th 
volume. 

f  Having  been  favored  by  Mr.  Randall  with  a  copy  of  the  opinion  of  the 
Court  in  this  case,  I  have  inserted  it,  with  some  others,  in  an  appendix  to 
this  volume.  —  REP. 


1836.]  OF  PENNSYLVANIA.  410 

[PHILADELPHIA,  APRIL  14,  1836.] 
The  UNION  CANAL  CO.  against  YOUNG  and  Others. 


In  1792,  an  act  of  the  legislature  was  passed,  to  incorporate  a  company  for 
opening  a  canal  between  the  rivers  Delaware  and  Schuylkill,  which 
authorized  the  corporation  to  purchase,  take,  and  hold  all  such  real  estate 
as  should  be  necessary  for  them  in  the  prosecution  of  their  works  :  in 
pursuance  of  which  they  proceeded  to  lay  out  the  canal,  part  of  which 
passed  through  the  land  of  A.,  who  was  a  stockholder  in  the  Company. 
In  1793  a  parol  agreement  was  made  between  the  Company  and  A.  for 
the  price  of  that  part  of  his  land  taken  for  the  canal ;  which  agreement 
was  recognized  by  a  bill  or  memorandum  in  writing  made  by  A.  in  1798. 
About  the  year  1793,  the  canal  was  actually  dug  through  the  land  of  A.; 
but  the  communication  between  the  two  rivers  was  never  completed ;  and 
after  the  year.  1795,  nothing  further  was  done  in  opening  the  communi- 
cation by  this  Company  ;  but  the  strip  remained  within  the  fences  of  A. 
and  with  the  remainder  of  his  land,  was  at  one  time  let  to  a  tenant  for 
years,  who  used  part  of  it,  with  the  other  ground,  for  the  purpose  of 
raising  grain.  In  1811  an  act  was  passed,  authorizing  a  junction  of  the 
Delaware  and  Schuylkill  Canal  Co.  with  the  Schuylkill  and  Susquehanna 
Navigation  Co.  under  the  name  of  the  Union  Canal  Co.,  by  virtue  of  which 
all  the  estates,  rights  and  privileges  of  the  two  companies  were  vested  in 
the  new  corporation.  In  1819  another  act  of  the  legislature  required  the 
Union  Canal  Co.  to  confine  their  operations  to  the  completion  of  the  com- 
munication between  the  Schuylkill  and  the  Susquehanna.  In  1821  A. 
accepted  certificates  for  10  shares  of  stock  of  the  Union  Canal  Co.  in  lieu 
of  his  stock  in  the  old  Delaware  and  Schuylkill  Canal  Co.  In  June,  1833, 
part  of  the  land  of  A.,  which  being  in  the  immediate  vicinity  of  Phila- 

•  delphia,  had,  in  the  mean  time,  greatly  appreciated  in  value,  was  sold 
for  building  lots  to  B.  and  C.  who  gave  mortgages  for  the  purchase, 
money.  In  an  ejectment  instituted  to  Dec.  term,  1833,  by  the  Union 
Canal  Co.  against  the  heirs  of  A.,  and  the  purchasers  under  them,  it  was 
held,  (1st.)  That  the  plaintiffs  acquired  a  right  to  the  soil,  occupied  or 
taken  for  the  canal,  and  not  merely  an  easement  therein.  (2d.)  That 
the  possession  of  A.  was  not  to  be  considered  as  adverse  to  the  plaintiffs, 
so  as  to  give  effect  to  the  statute  of  limitations.  (3d.)  That  the  abandon- 
ment of  the  canal,  and  the  dissolution  of  the  old  company  in  1811,  did 
not  raise  any  equity,  which  would  avail  the  defendants  as  a  defence,  or 
authorize  them  to  treat  the  contract  as  rescinded.  (4th. )  That  supposing 
B.  and  C.  to  be  purchasers  without  notice,  they  were  not  entitled  to  pro- 
tection further  than  as  they  had  actually  paid  the  purchase  money  :  the 
mortgages  not  being  considered  as  payment. 

THIS  was  an  action  of  ejectment,  brought  by  the  Union  Canal 
Company   of  Pennsylvania,   against  William  W.    Young,  John 
M'Allister,  * Junr.  Joseph  Fox  and  Philip  M.  Price,  to     p^-,  -.  -. 
recover  a  piece  of  land  containing  135  perches,  formerly     "- 
of  William  Young,  deceased. 

The  action  was  tried  at  a  Court  of  Nisi  Prius,  held  by  Mr. 
Justice  Rogers,  on  the  1st  of  March,  1836,  when  by  consent  of 
parties  a  verdict  was  taken  for  the  plaintiffs,  subject  to  the  opinion 
of  the  Court  upon  the  whole  case. 

On  the  29th  of  September,  1791,  an  act  of  the  legislature  of 


411  SUPREME  COURT  [March  Term, 

(Union  Canal  Company  v.  Young.) 

Pennsylvania  was  passed  to  incorporate  a  company,  for  opening  a 
canal  and  lock  navigation  between  the  rivers  Schuylkill  and  Sus- 
quehanna  ;  by  the  second  section  of  which,  the  company  were 
authorized  to  purchase,  take  and  hold,  in  fee  simple  or  for  any 
lesser  estate,  all  such  lands,  tenements  and  hereditaments,  as  should 
be  necessary  for  them  in  the  prosecution  of  their  works. 

On  the  10th  of  April,  1792,  an  act  was  passed  to  incorporate  a 
company,  for  opening  a  canal  and  water  communication  between 
the  rivers  Delaware  and  Schuylkill  ;  the  2d  section  of  which  au- 
thorized this  company  to  purchase,  take  and  hold  real  estate  in 
like  manner.  The  8th  section  declared,  that  it  should  be  lawful 
for  the  President  and  Managers  of  this  Company  "  to  contract  and 
agree  with  the  owners  of  any  lands  and  tenements,  for  the  pur- 
chase of  so  much  thereof  as  shall  be  necessary  for  the  purpose  of 
making,  digging,  and  perfecting  the  said  canal,  and  of  erecting 
and  establishing  all  the  necessary  locks,  works  and  devices,  to 
such  a  navigation  belonging,  if  they  can  agree  with  the  owners:  " 
but  in  case  of  disagreement,  or  in  case  the  owner  thereof  should 
be  a  feme,  covert,  under  age,  non  compos  mentis,  or  out  of  the 
state,  or  otherwise  incapacitated  to  convey,  a  proceeding  in  the 
nature  of  a  writ  of  ad  quod  damnum  was  authorized. 

In  pursuance  of  these  acts  the  two  companies  were  organized, 
and  the  Delaware  and  Schuylkill  Canal  Company  proceeded  to  lay 
out,  and  construct  their  canal ;  the  line  of  which  passed  through 
the  land  of  William  Young,  who  was  a  stockholder,  and  for  some 
time  a  manager  of  the  company. 

About  the  1st  of  April,  1793,  an  agreement  was  made  by  the 
company  with  Mr.  Young,  for  the  purchase  of  so  much  of  his 
land  as  was  requisite  for  the  canal,  amounting  to  135  perches. 
In  the  same  year  the  canal  was  dug  out  through  this  land.  By 
the  Act  of  1792,  it  was  declared  that  if  the  company  should"  not 
within  10  years  from  the  passing  of  the  act,  complete  the  canal, 
so  as  to  open  a  sufficient  communication  from  the  Schuylkill  to 
the  Delaware,  it  should  be  lawful  for  the  Legislature  to  resume 
the  franchises  thereby  granted.  By  an  Act  passed  on  the  23d 
of  March,  1802,  reciting,  that  unforseen  occurrences  had  pre- 
vented the  completion  of  the  canals  within  the  time  limited  by 
law,  it  was  enacted  that  the  act  of  1792  should  be  revived  and 
extended  for  the  sp"ce  of  5  years  from  and  after  the  passing  of 
the  Act  of  1802,  and  thence  to  the  end  of  the  next  session  of  the 
F*4.1 91  General  Assembly.  By  another  act  passed  on  the  *17th 
of  March,  1806,  the  Act  of  1792  was  continued  in  full 
force  until  the  1st  of  January,  1820.  On  the  2d  of  April,  1811, 
an  act  was  passed,  which  after  reciting  that  the  stockholders  of 
the  two  companies  before-mentioned,  had  agreed  to  form  a  joint 
stock  and  interest  under  the  title  of  "The  Union  Canal  Com- 


1836.]  OF  PENNSYLVANIA.  412 

(Union  Canal  Company  v.  Young.) 

pany  of  Pennsylvania,"  enacted  in  the  first  section,  that  "  all  acts 
and  supplements  heretofore  passed  in  favor  of  the  Schuylkill 
and  Susquehanna  Navigation,  and  also  of  the  Delaware  and 
Schuylkill  Canal  Navigation,  be  and  they  are  hereby  repealed, 
and  that  the  corporate  title  of  the  present  managers  and  com- 
pany of  the  Schuylkill  and  Susquehanna  Navigation,  and  of  the 
Delaware  and  Schuylkill  Canal  Navigation,  shall  henceforth 
cease  and  be  abolished ;  and  that  the  corporate  style  and  title 
of  the  said  corporation,  shall  be  "  The  Union  Canal  Company  of 
Pennsylvania ;  under  which  name  the  said  corporation  shall 
have,  hold  and  enjoy  all  estates,  grants,  rights,  interests  and 
privileges  heretofore  held  and  enjoyed  by  them  under  their  former 
respective  titles,"  &c.  On  the  29th  of  March,  1819,  an  act  sup- 
plementary to  the  preceding  act  was  passed,  which  authorized 
additional  subscriptions  to  the  stock  of  the  Union  Canal  Com- 
pany. The  8th  section  declared  that "  all  right  and  title  to  any  and 
every  kind  of  property,  real,  personal  or  mixed,  which  belonged  to 
the  late  Delaware  and  Schuylkill  and  Susquehanna  Canal  Com- 
panies, or  which  is  now  held  by  the  Union  Canal  Company,  shall 
be  held  in  common  by  the  old  and  new  subscribers,"  &c.  By  the 
llth  section,  the  company  was  required  to  confine  its  operations 
and  improvements  to  the  completion  of  the  communication  be- 
tween the  Schuylkill  and  the  Susquehanna. 

This  action  was  instituted  to  December  Term,  1833. 

On  the  trial  the  plaintiffs  gave  in  evidence  the  following  bill  or 
account  in  the  hand-writing  of  Wm.  Young,  viz. 

"  Delaware  and  Schuylkill  Company,  to  Wm  Young  Dr. 
1793,  1st  April.     135  perches  land,  Northern  Liberties, 

at  <£87,  10s.  per  acre  $196  73 

Interest  until  1st  of  June,  1798,  60  98 


257  71 
1798,  16th  July.     To  cash  lent,  50  00 


$307  71" 

They  also  gave  in  evidence  a  survey  of  the  canal  tract  through 
the  land  of  Young,  dated  June  25th,  1796,  addressed  to  William 
Young ;  the  measurement  of  a  contract  for  cutting  the  canal 
through  his  land,  dated  April  .26,  1796  ;  an  account  of  the  Trea- 
surer *dated  Dec.  llth,  1799,  crediting  Young  for  land, 


$257  71,  and  debiting  him  with  certain  shares  of  stock 


[*413] 

of  the  company  in  full  payment  of  the  balance  ;  a  minute  of  the 
company  dated  December  17,  1799,  approving  the  said  accounts ; 
certain  bills  rendered  by  Young  against  the  company,  from  1795 
to  1799 ;  a  resolution  of  the  company  dated  May  3d,  1796, 


413  SUPREME  COURT  [March  Term, 

(Union  Canal  Company  v.  Young.) 

"  that  the  contracts  for  the  lands  of  Messrs.  Morris  and  Young 
be  deemed  and  taken  to  have  been  entered  into  and  concluded  at 
the  time  the  respective  contracts  for  working  the  same  were 
made  ;"  the  certificate  of  the  ten  shares  of  stock  of  Wm.  Young 
in  the  Delaware  and  Schuylkill  Canal,  dated  August  4th,  1792, 
with  credits  for  instalments  endorsed  as  paid  at  different  times, 
from  31st  October,  1792,  to  22d  January,  1800 ;  and  receipts 
signed  by  William  Young,  and  dated  7th  of  May,  1821,  for  10 
shares  of  the  Union  Canal  stock  in  lieu  of  his  Delaware  and 
Schuylkill  Canal  stock.  They  also  proved  that  Mr.  Young  was 
present  at  certain  meetings  of  the  board  of  managers  in  1796  and 
1800. 

The  defendants  then  gave  in  evidence  a  deed  of  conveyance  from 
Samuel  Miles  to  Wm.  Young,  dated  25th  of  March,  1795,  for  8 
acres  151  perches,  including  the  premises  in  question,  and  the 
following  parol  evidence : 

Frederick  Branner  testified,  that  in  the  year  1793,  the  Com- 
pany dug  out  the  Canal  in  Young's  property.  He  saw  them  at 
it.  In  1794  they  dug  east  of  the  Ridge  Road.  Mr.  Young's 
property  was  west  of  the  Ridge  Road.  One  Mr.  Johnson  super- 
intended. After  it  was  kept  as  a  pasture  ground,  shut  up  and 
nothing  done  to  it.  Was  so  kept  in  1794.  The  fence  was  never 
removed  away  at  any  time.  It  was  always  kept  up.  They  made 
a  garden — the  family  that  lived  there  on  the  front  part.  The 
rest  was  kept  for  grazing  ground.  The  canal  bottom  was  pas- 
tured with  the  rest.  About  half  was  full  of  water,  and  the  rest 
the  cattle  pastured  in.  The  water  was  a  nuisance,  and  brought 
fevers.  Mr.  Young  opened  a  little  to  let  it  run  off  so  as  not  to 
keep  so  much  there.  The  people  were  a  good  deal  unhealthy 
there  with  the  ague.  No  body  but  Mr.  Young  appeared  to  be 
owner  of  that  property  as  far  as  I  know  of.  I  have  lived  about 
a  quarter  of  a  mile  from  it  now  about  twenty-four  years.  Before 
that  I  lived  in  the  city.  I  knew  the  property  very  well  before. 
Been  often  past — twice  or  three  times  a  day.  I  had  a  pasture 
ground  of  one  John  Pemberton  just  above.  Company  went  east 
in  1795.  I  never  saw  any  thing  more  of  them  since.  Nothing 
done  to  it  since. 

Being  cross-examined,  he  said  : — The  digging  was  three  or  four 
feet  deep — some  not  so  deep — and  on  Mr.  Logan's  place  you  could 
swim  a  horse.  None  of  it  was  ten  or  fifteen  feet.  The  fence  I 
spoke  of  was  round  Mr.  Young's  property.  There  never  was  any 
alteration  made  in  the  fence  at  all.  It  stood  as  before.  Young 
r*4141  had,  may  *be,  ten  acres  it  stood  round.  There  were 
buildings  there — a  stable,  house,  and  printing  office.  It 
was  a  few  years  after  1794  the  printing  office  was  put  up.  The 
fence  was  two  or  three  rods,  may  be,  from  the  digging  in  some 


1836.]  OF  PENNSYLVANIA.  414 

(Union  Canal  Company  v.  Young. ) 

places,  and  in  some  places  further.  In  some  a  few  acres  from  the 
digging.  The  fence  was  all  round,  and  division  fences  too — some 
west  and  east.  None  of  the  fences  were  removed,  cross  fences  or 
others,  before  1794  or  1795,  when  the  last  of  the  digging  was 
done.  The  garden  was  on  another  part  than  the  canal — was  a 
few  rods  off,  may  be.  The  cows  used  to  run  in  the  excavation. 
No  other  use  was  made  of  it.  They  used  to  run  in  it  from  the 
time  the  digging  was  first  made,  in  1793.  Pegg's  run  ran  across 
the  canal.  It  began  above  Young.  It  was  owing  to  a  good  deal 
of  rain  that  the  canal  was  filled.  Part  of  the  canal  could  not  be 
drained.  The  last  I  saw  of  digging  was  in  1795,  except  where 
the  buildings  are  put,  the  trench  is  there  yet.  I  mean  Fox  and 
Price's  houses. 

Being  re-examined — he  said  the  people  made  a  gap  to  go 
through  to  dig,  and  then  fenced  after — but  did  not  pull  the  fence 
down  at  Young's.  Don't  know  of  any  fence  running  across  the 
canal  since.  Thirteenth  street  now  runs  across  this  ground,  and 
the  canal  on  the  line  of  Thirteenth  street  was  filled  up.  That 
street  is  now  curbed  and  paved. 

Being  again  cross-examined — he  said  Thirteenth  street  was  put 
there  three  or  four  years  ago.  Was  paved  two  years  ago.  Was 
opened  and  filled  several  years  since. 

Jacob  Gardner,  testified,  that  he  had  lived  in  the  district  of 
Spring  Garden  33  years  last  September.  He  was  one  of  the 
Commissioners  for  sixteen  years  in  that  district,  commencing  in 
1813.  He  collected  the  county  taxes  for  nine  years,  commencing 
in  1820.  He  was  assessor  in  1821,  and  helped  make  the  assess- 
ments six  or  seven  years.  He  had  known  this  White  Hall  estate 
thirty-four  or  thirty-five  years.  He  knew  it  as  Mr.  Young's 
property ;  the  whole  of  it.  He  never  knew  there  was  any  divi- 
sion in  it.  It  was  always  assessed  to  the  estate  of  William  Young 
during  the  time  he  had  anything  to  do  with  the  assessment  and 
collection  of  taxes.  He  thinks  Mr.  Grigg,  the  tenant,  paid  him 
the  taxes.  There  never  was  any  part  of  this  estate  assessed  to 
the  Union  Canal  Company.  They  never  paid  any  taxes  on  it. 
He  never  collected  any  taxes  from  it  except  the  Young  people. 
Mr.  Young  was  landlord  of  Mr.  Grigg.  The  excavation  east  of 
the  Ridge  Road  always  remained.  We  filled  the  canal  ground  up 
east  of  the  Ridge  Road  when  it  was  occupied  by  Spring  Garden 
Street.  It  was  curbed  and  paved  by  the  Commissioners  of  the 
District  of  Spring  Garden.  I  was  superintendent  four  years.  I 
had  a  great  deal  of  it  filled  up.  The  Canal  Company  offered  no 
resistance,  and  made  no  claim.  I  never  collected  or  assessed  the 
taxes  to  the  Union  *Canal  Co.  on  any  part  of  the  route 
of  this  survey.  The  Columbia  Railroad  is  located  from 
this  end  of  Pratt's  place  partly  to  the  bridge,  on  the  canal  survey 
—through  Pratt's,  Williams's,  Fisher's,  &c. 


415  SUPREME  COURT  {March  Term, 

(Union  Canal  Company  t>.  Young.) 

Being  cross-examined : — He  said,  that  as  the  Canal  Company 
had  not  done  what  they  undertook,  we  thought  it  reverted  to  the 
owners,  and  we  taxed  it  to  the  owners,  all  except  east  of  Pratt's, 
where  a  town  plot  is  laid,  and  filed  liens  for  taxes,  where  the 
owners  were  unknown.  White  Hall  estate  was  always  assessed 
as  Young's.  We  took  the  whole  number  of  acres  to  William 
Young,  without  any  allowance  for  the  canal.  We  had  the  old  as- 
sessments to  go  by.  We  found  it  had  always  been  assessed  to 
Young,  and  went  by  it.  The  assessment  does  mention  the  num- 
ber of  acres.  The  taxes  were  $50  or  $60  more  or  less.  All  the 
the  ground  where  it  was  excavated,  the  owners  fronting  on  it  paid 
the  taxes.  The  assessors  did  consider  they  included  the  excava- 
tion to  the  adjoining  owners.  The  assessments  were  always  the 
same.  Mr.  Haws,  who  assessed  for  18  years  before  me,  never 
intimated  that  the  Union  Canal  Company  had  any  ground  to  be 
assessed.  He  (Mr.  Haws)  assessed  for  18  years.  His  last  year 
was  in  1808.  He  took  sick  and  I  had  to  finish  it  for  him  that 
year.  There  is  an  assessment  every  year.  He  spoke  of  annual 
assessments.  Robert  Brooke  was  the  first  surveyor  of  the  dis- 
trict. After  his  death  Joseph  S.  Siddall,  Mr.  Ph.  M.  Price  suc- 
ceeded him,  and  Joseph  Fox  is  Regulator  now  with  P.  M.  Price. 
They  have  been  such  seven  or  eight  years.  They  have  reported 
extensive  plans  for  the  district  for  confirmation..  It  is  necessary 
for  them  to  go  over  the  grounds  of  the  district  for  the  purpose. 
They  give  public  notice  of  the  opening  of  streets  that  parties 
may  make  objections.  It  was  dug  for  a  canal.  That  was  gener- 
ally known.  The  court  requires  a  survey  to  be  actually  made  on 
the  ground. 

Peter  Hotz  swore  that  he  was  collector  of  taxes  for  the  Dis- 
trict of  Spring  Garden  for  1829,  1830,  and  1831.  Had  known 
the  White  Hall  estate  thirty  or  forty  years.  He  never  knew 
whose  property  it  was  till  about  seven  years  ago.  He  had  un- 
derstood it  was  assessed  to  William  Young  since  he  was  collector. 
Don't  remember  about  the  digging  of  the  canal  there.  Knows 
there  was  one  dug  there.  Mr.  Grigg  paid  me  the  taxes  on  the 
estate. 

Jacob  Gardner  called  again  by  plaintiffs — said  Spring  Garden 
street  was  opened  through  this  property  about  four  years  since. 
Price  and  Fox  had  their  office  together. 

Anthony  Grigg,  being  sworn  said: — I  was  tenant  of  the  White 
Hall  estate.  In  1812  we  moved  there,  and  left  in  1830.  It  was 
rented  of  William  Young.  The  whole  enclosure.  We  rented  of 
no  one  else  any  part  of  it.  I  knew  of  no  other  claim  during  that 

P*41fil     ^me  *to  *na*  Pr°Perty  °f  th.e  ownership.     I  paid  the 

-"     taxes   of    that   property.       There  were  no  taxes  paid 

by  any  other  person  than  me  for  any  portion  of  it.     The  build- 


1836.]  OF  PENNSYLVANIA.  416 

(Union  Canal  Company  v.  Young.) 

ing  front  of  the  canal  was  the  printing  office.  We  first  paid  about 
$35,  and  afterwards  about  $60  taxes.  In  a  wet  season  the  bot- 
tom of  the  canal  had  water  in  it,  in  a  dry  it  had  weeds.  It  was  a 
dry  season  to  clear  it  of  water.  The  canal  was  lower  than  Pegg's 
run,  and  for  that  reason  the  water  stood  in  it.  It  drowned  vege- 
tation, and  we  supposed  it  helped  to  create  the  intermittents  of 
the  neighborhood.  Fevers  prevailed  there  very  much.  The 
damage  was  incalculable  if  it  were  all  owing  to  that.  There  were 
large  brick  ponds  in  the  neighborhood.  (Sometimes  we  had  not 
a  man  or  a  boy  to  work  owing  to  the  fever  and  ague.  The  cattle 
were  turned  in,  and  nothing  prevented  them  going  in,  and  they 
eat  the  grass  on  the  bank.  One  fence  ran  across  the  canal  east 
of  Pegg's  run,  and  divided  the  property  into  four  or  five  lots — 
one  near  where  Thirteenth  street  runs  now.  The  property  was 
always  under  fence  from  1812. 

Being  cross-examined,  he  said: — The  fence  near  13th  street  we 
put  up.  It  was  not  there  before.  In  a  few  years  after  we  went, 
we  put  it  up.  At  the  west  end  there  were  300  feet,  and  about 
150  feet  at  the  east  end  that  were  not  excavated.  This  was  left 
in  its  original  state-.  The  almost  only  way  to  get  from  one  part 
to  another  was  round  these  ends.  We  did  not  undertake  to  fill 
up  the  canal,  or  make  alterations,  but  deepened  the  run. 

Being  re-examined,  he  said: — There  was  one  brick  yard  300 
feet  off  directly  across  the  Ridge  Road.  There  was  never  a  great 
deal  of  water  there.  There  was  another  a  quarter  of  a  mile  off. 
We  considered  the  canal  a  part  of  the  cause  of  the  sickness,  was 
one  reason  why  we  attempted  to  drain  it. 

Again  cross-examined  : — I  always  thought  it  was  Mr.  Young's 
property.  I  thought  the  fever  was  more  after  damming  the 
Schuylkill.  It  was  the  next  season  after  damming  that  the  hands 
were  so  bad.  I  did  not  know  that  the  Canal  Company  had  any 
claim  at  all.  We  made  a  fence  along  the  bank  of  the  canal  about 
200  feet  from  the  stable  to  just  east  of  Pegg's  run,  and  then 
across  it.  Part  of  it  on  the  bank  of  the  canal.  We  put  this  up 
when  we  put  up  the  other. 

Thomas  Nesbit,  sworn,  said : — I  lived  on  this  place,  White 
Hall,  near  8  years.  I  went  apprentice  with  Mr.  Young  in  1798. 
That  property  was  enclosed  during  all  the  time  I  knew  it.  It  was 
at  that  time  in  the  occupation  of  Mr.  Young.  He  had  tenants  on 
it.  The  whole  was  enclosed  and  used  so  far  as  they  could  make 
any  use  of  it.  The  bottom  was  useless  so  far  as  I  know.  There 
was  a  fence  across  it,  dividing  that  portion  between  the  printing 
office  and  Ridge  Road,  about  100  yards  from  the  Ridge  Road. — 
There  was  nothing  done  by  the  Canal  Company  during  the  time 
I  knew  it.  There  was  *no  claim  of  property  set  up  by 
them  that  I  ever  heard  of.  The  excavation  stopped 


417  SUPREME  COURT  [March  Term, 

(Union  Canal  Company  «.  Young. ) 

from  100  to  150  feet  from  the  west  end,  and  from  the  east  90  or 
100  feet.  There  was  but  one  fence  across  the  canal.  It  was 
there  when  I  went  there.  There  was  a  small  portion  of  the  canal 
bed  cut  off  by  the  fence,  was  in  corn,  put  there  by  the  tenant.  It 
was  the  bed  of  the  canal  and  east  of  the  fence.  Once  or  twice 
there  was  corn  in  it.  The  tenant's  name  was  Adam  Tice.  He 
was  old  then,  and  not  now  to  be  found.  It  was  in  1802  or  1803 
that  A.  Tice  raised  one  or  two  crops  of  corn.  The  water  in  the 
bottom  was  supposed  to  be  prejudicial  in  my  time.  There  was 
sickness  experienced  there  then  by  the  people.  The  canal  part  was 
used  for  grazing  with  the  rest  of  the  place  as  far  as  it  could 
be. 

A.  Grigg,  again  called  by  defendants,  said: — My  father  moved 
to  White  Hall  estate  in  1808,  and  I  occasionally  visited  him  there. 
He  rented  from  Wm.  Young.  The  property  continued  enclosed 
during  that  time  to  1812. 

William  W.  Woodward,  being  sworn,  deposed  : — I  cannot  say 
positively  how  long  I  have  known  it,  (White  Hall)  except  in  1798 
I  was  sick  there.  I  was  apprentice  with  W.  Young  in  1787.  I 
remember  seeing  the  canal  dug  round  the  printing  office.  In  1802 
I  was  likewise  there.  And  since  I  have  seen  it,  I  had  a  great 
deal  of  printing  done  there.  One  (book)  I  was  looking  at  the 
other  day,  in  1806.  That  property  has  always  been  enclosed 
since  I  have  been  acquainted  with  it.  I  have  taken  a  walk  fre- 
quently round  the  lot.  I  never  doubted  any  person  being  the 
owner  but  Mr.  Young.  I  never  heard  of  any  other.  The  print- 
ing office  was  a  strong  building,  and  built  for  some  strong  pur- 
pose, or  it  would  not  have  held  as  much  as  it  did. 

Being  cross-examined,  he  said : — To  the  best  of  my  recollection 
every  part  of  the  ground  was  enclosed.  One  evidence  was,  that 
in  1798  my  wife  said  she  had  to  climb  the  fence.  It  was  a  nar- 
row building.  Faced  on  the  canal. 

The  defendant  further  gave  in  evidence  certain  deeds  from 
Wm.  W.  Young  and  John  M'Allister,  jun.,  trustees  named  in  the 
will  of  William  Young,  to  Joseph  Fox  and  Philip  M.  Price,  in 
fee,  dated  12th  "of  June,  1833,  for  certain  lots  of  ground  contain- 
ing parts  of  the  strip  of  land  claimed  in  this  suit  :  Resolutions  of 
the  Company  relating  in  1829,  30,  to  the  use  of  the  bed  of  the 
Canal  by  the  Columbia  Railroad  ;  other  resolutions  passed  in 
1815,  1816,  1834,  1835,  relative  to  the  disposal  of  the  interest 
of  the  Company  in  the  ground  intended  for  the  canal.  A  letter 
dated  Philadelphia,  August  27,  1814,  from  the  president  of  the 
Union  Canal  Co.  to  Wm.  Young,  requesting  him  in  conformity 
with  a  resolution  of  the  Co.  to  have  a  deed  prepared  for  the  part 
r*41 81  °^  n*s  lan(^>  through  which  the  canal  was  *dug,  and  for 
-"  which  he  received  credit  on  the  books  of  the  Company 


1836.]  OF  PENNSYLVANIA.  418 

(Union  Canal  Company  v.  Young.) 

in  December,  1799.  It  was  alleged  that  no  answer  was  returned 
to  this  letter.  Evidence  was  also  given  to  show  that  the  defend- 
ants liad  offered  to  refund  the  principal  and  interest  of  the  dama- 
ges allowed  to  Mr.  Young,  upon  receiving  a  release  from  the 
plaintiffs. 

The  plaintiffs  further  gave  in  evidence  a  statement  of-  the  dam- 
ages paid  on  the  route  from  the  Delaware  to  the  Schuylkill,  viz. 
by  agreement  with  owners  $12387  41.  By  assessment  of  jury 
$3108  83.'  Two  mortgages,  each  dated  12th  June,  1833,  partly 
on  the  property  in  question,  one  from  Joseph  Fox  to  John 
M'Allister  for  $6000,  and  the  other  from  Philip  M.  Price  to  the 
same  for  $7000.  They  also  proved  that  written  notice  was  given 
to  the  defendants,  Fox  and  Price  of  the  title  of  the  plaintiffs,  on 
the  28th  of  June,  1833. 

The  testimony  on  both  sides  being  closed,  the  defendants  filed 
an  obligation  to  refund  to  the  plaintiffs,  in  case  of  a  verdict  and 
judgment  in  their  favor,  the  principal  and  interest  of  the  dam- 
ages allowed  William  Young ;  provided  the  Court  should  be  of 
opinion  that  they  were  equitably  bound  to  refund  the  same. 

The  following  specifications  of  the  points  on  which  the  defend- 
ants relied  were  filed  by  their  attorneys. 

"1.  The  plaintiffs  have  no  right  of  entry  into  the  premises  in 
question ;  having  had  no  possession  thereof  within  twenty-one 
years  before  the  commencement  of  this  action. 

2.  The  plaintiffs  have  no  right  of  entry  into  the  premises  ; 
because  the  defendants  and    their  ancestors  have   had  the  ex- 
clusive,   absolute   and   adverse    possession  of  the   premises   for 
twenty-one  years  and  upwards  before  the  commencement  of  the 
present  suit. 

3.  The  defendants  are  protected  by  the  statute  of  limitations ; 
because  they  enclosed  round  the  entire  tract  in  question,  culti- 
vated, grazed,  and  fenced  along  and  across  the  same,  upwards  of 
twenty-one  years  before  the  commencement  of  this  action,  whereby 
the  plaintiffs  were  ousted,  and  the  defendants  have  ever  since  so 
maintained  their  possession. 

4.  The  plaintiffs  lost  their  right  of  entry,  if  any  they  ever  had, 
by  omitting  to  pay  any  part  of  the  taxes  assessed  on  the  premises 
in  question  for  twenty-one  years,  and  suffering  the  defendants  to 
pay  the  whole  taxes  on  the  same  for  twenty-one  years  and  up- 
wards, before  this  action  was  begun,  whereby  it  should  have  been 
left  to  the  jury  to  presume  that  the  plaintiffs  had  been  ousted  and 
barred  by  the  statute  of  limitations. 

5.  The  plaintiffs  have  no  right  of  entry  into  the  premises  in 
question ;  because  they  have  not  shown  that  they  intend  to  occupy 
the  same  "  for  the  purpose  of  making,  digging,  and  perfecting"  a 
canal  between  the  river  Delaware  and  Schuylkill,  the  only  pur- 

TOL.  i.— 28 


418  SUPREME  COURT  [March  Term, 

(Union  Canal  Company  t>.  Young. ) 

pose  for  which  the  Delaware  and  Schuylkill  Canal  Company  were 
authorized  by  their  charter  to  take  or  acquire  the  said  property. 
f*41Q1  *^'  ^ie  Pontiffs  have  no  right  of  entry  into  said  pre- 
mises ;  because  they  have  abandoned  the  purpose  of  mak- 
ing such  canal,  by  neglect  of  all  work  upon  it  for  forty  years,  by 
never  having  acquired  a  continuous  right  to  occupy  the  soil  from 
one  river  to  the  other,  by  releasing  to  the  adjoining  owners  rights 
that  they  may  have  acquired,  by  celinquishment  of  the  route  to 
the  Commonwealth  for  a  rail-way,  and  the  occupation  of  other 
portions  of  it  by  public  streets. 

7.  The  plaintiffs  have  no  right  of  entry  into  said  premises,  be- 
cause the  State  has,  by  Supplemental  acts  of  Assembly,  accepted 
by  the  plaintiffs,  prohibited  them  from  making  the  canal  from  the 
Schuylkill  to  the  Delaware. 

8.  The  plaintiffs  have  no  right  of  entry  into  said  premises,  un- 
accompanied by  a  satisfactory  demonstration  of  their  power  and 
intention  to  make  the  said  canal ;  because  they  could  not  con- 
stitutionally take  the  property  of  a  citizen  against  his  consent, 
except  for  the  public  use  authorized  by  their  charter;  and  the 
agreement  of  parties  to  accept  damages,  was  not  intended  to  con- 
fer any  greater  interest  than  the  company  could  acquire  by  an 
adversary  inquisition  and  judgment  of  the  Court  thereon. 

9.  That  the  only  title  that  the  Delaware  and  Schuylkill  Canal 
Company  could  acquire  consistently  with  their  charter,  whether 
by  agreement  with  the  parties,  or  by  inquisition  and  judgment  of 
the  Court,  was  a  base,  qualified  and  determinable  fee,  depending 
upon  the  public  use  of  the  soil  as  aforesaid,  and  not  a  fee  simple, 
"generally,  absolutely  and  simply." 

10.  That  by  the  agreement  between  the  Delaware  and  Schuyl- 
kill Canal  Company  and  William  Young,  the  parties  did  not  in- 
tend a  purchase  and  sale  of  the  title  to  the  land,  for  any  estate  or 
transferable  interest  therein,  but  that  the  former  should  merely 
acquire  an  easement,  they  paying  "  damages  as  settled  for  lands 
occupied"  for  that  purpose;  from  which  easement  the  premises 
are  now  discharged  by  abandonment,  and  the  acts  aforesaid  relin- 
quishing the  franchise  ;  and  if  an  easement,  no  ejectment  will  lie 
therefor. 

11.  That  whatever  may  have  been  meant  by  the  parties  as  to 
the  nature  of  the  claim,  title  or  interest  to  be  acquired  by  the 
Delaware  and  Schuylkill  Canal  Company,  the  said  Company  never 
did  acquire  a  legal  title  in  the  premises,  but  merely  an  executory 
contract  or  equitable  interest,  liable  to  be  repelled  by  any  counter- 
vailing equity. 

12.  That  the  land  having  cost  William  Young  five  hundred 
and  sixty  dollars  an  acre,  and  the  Company  having  allowed  him 
in  damages  to  the  credit  of  his  stock,  but  two  hundred  and  thirty- 


1836.]  OF  PENNSYLVANIA.  419 

(Union  Canal  Company  t>.  Young.) 

three  dollars  and  thirty-three  cents  per  acre,  the  larger  considera- 
tion to  be  paid  to  Wm.  Young,  were  the  stipulated  benefits  of  the 
canal  to  his  property,  which  the  company  have  failed  to  make 
according  to  their  charter  and  contract  with  Wm.  Young. 

13.  That  any  equity  the  plaintiffs  could  derive  from  the  pay- 
ment of  the  damages  has  been  fully  neutralized  by  the  damage 
sustained  *by  the  digging  of  the  soil,  and  injury  thereby     r+iorn 
to  pasturage  and  health  ;  and  if  that  be  not  sufficient,     L 

by  the  agreement  of  record  by  the  defendants,  to  refund  the 
principal  and  interest  of  said  damages,  if  the  Court  shall  be  of 
opinion  that  any  such  obligation  equitably  rests  on  the  defend- 
ants. 

14.  The  plaintiffs  have  slept  too  long  upon  their  rights,  if  any 
they  had,  and  equity  will  not  aid  their  stale  claim — equity  adopts 
the  statute  of  limitations. 

15.  Circumstances  having  greatly  changed  in  respect  to  internal 
improvements,  the  abilities  and  purposes  of  the  plaintiffs,  and  value 
of  property,  so  that  neither  party  could  now  derive  from  the  exe- 
cution of  the  contract  the  expected  benefits,  it  would  be  inequitable 
to  enforce  the  specific  performance  of  it. 

16.  After  the  lapse  of  time  that  has  taken  place,  under  the  cir- 
cumstances in  evidence  in  this  case,  a  release  of  all  claim  from  the 
Company  will  be  presumed. 

17.  The  Delaware  and  Schuylkill   Canal  Company  was  dis- 
solved in  1811,  when  the  Union  Canal  Company  was  formed ; 
and  thereby  all  title  to  the  premises  in  question,  if  any  they  had, 
reverted  to  William  Young,  and  was  never  acquired  by  the  present 
plaintiffs. 

18.  The  defendants,  Fox  and  Price,  are  record  purchasers  of 
the  premises  occupied  by  them,  without  notice  of  plaintiff's  title, 
and  unaffected  by  it,  whatever  it  may  be. 

19.  Because  the  evidence  is  insufficient  to  support  the  said  ver- 
dict, and  because  it  is  contrary  to  equity  and  law." 

Mr.  E.  K.  Price,  for  the  defendants. 

1.  The  plaintiffs  never  had  legal  possession  of  the  land.  The 
digging  of  the  canal  in  1793  was  a  trespass.  If  any  agreement 
was  made,  it  was  not  until  1796.  Mr.  Young  remained  in  pos- 
session ;  and  his  possession  was  distinct,  notorious  and  adverse. 
The  evidence  shows  that  in  1798,  a  fence  was  run  across  the 
canal,  and  that  inr  1802  and  1803,  corn  was  raised  in  the  bed  of 
the  canal.  The  property  was  let  out  by  Young,  and  every  act  of 
ownership  exercised  over  it,  precisely  as  in  respect  to  the  remain- 
der of  his  land.  In  Jones  v.  Porter,  (3  Penn.  Rep.  135,)  Judge 
Huston  says,  "  a  man  may  enter  on  and  continue  in  possession  of 
land  which  he  believes  or  knows  is  claimed  by  another,  but  noto- 


420  SUPREME  COURT  [March  Term, 

(Union  Canal  Company  v.  Young.) 

riously  claiming  for  himself  in  opposition  to  that  other ;  and  21 
years  possession  will  protect  him."  Here  we  say  that  the  pos- 
session was  adverse  from  1796  at  least,  when  he  ought  to  have 
executed  a  deed.  This  was  the  doctrine  of  the  Court  in  Pipher 
v.  Lodge,  (4  Serg.  &  R.  569  ;  s.  c.  16  Serg.  &  R.  214,  224 ;) 
Walker  v.  Walker,  (16  Serg  &  R.  379, 374;)  Frederick  v.  aray 
(10  Serg.  &  R.  182.)  In  Roger  v.  Bcnlow,  (10  Serg.  &  R.  306,) 
it  is  said  that  if  one  suffer  his  adversary,  who  has  designated  his 
claim  by  marks  on  the  ground,  to  pay  the  taxes  for  that  part  for 
f* J.91 1  ^  years,  he  *may  be  presumed  to  be  ousted  pro  tanto. 
Here  it  was  proved  that  taxes  have  been  uniformly  paid 
by  Mr.  Young  and  those  claiming  under  him,  and  that  the  plain- 
tiffs have  paid  nothing.  Read  v.  Groodyear,  (17  Serg.  &  R.  350; ) 
Caul  v.  Spring,  (2  Watts,  396.) 

2.  The  plaintiffs  have  no  right  to  recover  unless  they  show 
that  the  defendant's  land  is  wanted  for  the  purpose  of  a  canal. 
A  corporation  has  no  right  to  hold  lands  except  for  the  purposes 
of  its  incorporation.     There  is  no  act  of  assembly  authorizing 
these  plaintiffs  to  hold  land,  except  such  as  may  be  absolutely 
necessary  for  the  canal.     It  is  the  public  good,  and  that  alone, 
that  can  justify  the  taking  and  keeping  of  lands  by  a  corpora- 
tion.    Constitution   of   Pennsylvania,   Art.    10 ;  Declaration   of 
Rights,  Sec.  1 ;  2  Kent's  Comm.  229  ;  Act  of  6th  April,  1833  ; 
Angel  on  Corporations,  80  ;  Dwarras   on    Statutes,  750.     The 
plaintiffs  took  only  a  qualified  or  base  fee.     1  Preston  on  Estates, 
22,  42  ;  Wellington  v.  Wellington,  (1  Blackst.  Rep.  645.)     This 
was  a  mere  easement  and  not  an  estate  in  the. land.     Ammant  v. 
The  Turnpike   Company,   (13  Serg.  &  R.  210;)    Schuylkill 
Navigation  Company  v.  Decker,  (2  Watts,  343  ;)   Turnpike  v. 
Franklin  Co.,  (6  Serg.  &  R.  233  ;)  3  Kent's  Comm.  348  ;  2 
Yeates,  331 ;  4  Day,  330. 

3.  This  is  a  stale  claim  which  equity  will  not  aid.     After  a 
lapse  of  time  like  this,  specific  performance  would  not  be  decreed 
by  a  Court  of  Chancery.     In  this  case  things  are  greatly  changed. 
Streets  have   been   opened   through   this   property,  and   it  has 
greatly  increased  in  value.     If  the  plaintiffs  could  be  compelled 
to  open  the   canal,  there  might  be  some  compensation  for  the 
injury  done  to  the  lots ;  but  they  are  forbidden  by  law.     Pratt 
v.  Carroll,  (8  Cranch,  471  ;)  Brashears  v.    Grratz,  (6  Wheat, 
528  ;)  1  Maddock  Chan.  422  ;  3  John.  Ch.  Cas.  60 ;  Peebles  v. 
Reading,  (8  Serg.  &  R.  483 ;)  Elmendorf  v.  Taylor,  (10  Wheat, 
152 ;)  Eakin  v.  Raub,  (12  Serg.  &  R.  375 ;)  Pratt  v.   Fattier, 
(6  Peters  Rep.  416  ;)  Walker  v.  Walker,  (16  Serg.  &  R.  384  ;) 
Kingston  v.  Leslie,  (10  Serg.  &  R.  289.) 

4.  The   Delaware   and   Schuylkill   Canal   Company  was   dis- 
solved in  1811,  and  a  new  corporation  was  established  for  dis- 


1836.]  OF  PENNSYLVANIA.  421 

(Union  Canal  Company  v'.  Young. ) 

tinct  objects.  It  is  settled  that  upon  the  dissolution  of  a  corpor- 
ation all  its  real  estate  remaining,  reverts  to  the  grantor  and  his 
heirs.  Angel  on  Corporations,  105,  513 ;  and  the  cases  there 
cited.  2  Kyd.  on  Corp.  516;  2  Kent's  Com.  246.  [SERGEANT, 
J.  Is  there  any  case  of  a  sale  to  a  corporation  where  the  pur- 
chase money  has  been  paid,  in  which  this  doctrine  has  been  held  ?] 
The  law  is  laid  down  generally ;  and  there  is  no  exception  of  that 
case.  The  rule  as  stated  was  recognized  by  the  present  Chief 
Justice  in  The  Turnpike  Company  v.  Franklin  County,  (6 
Serg.  &  R.  234.) 

5.  At  all  events,  the  defendants,  Fox  and  Price,  are  entitled  to 
the  judgment  of  the  Court,  as  bona  fide  purchasers  for  a  valuable 
consideration  without  notice.  They  saw  the  progress  of  public 
improvement  obliterating  almost  every  mark  of  this  canal,  and  no 
steps  *taken  by  the  company  to  keep  up  or  make  known  [-#4001 
their  claim.  There  was  no  record  notice  whatever,  L 
either  by  registering  a  deed,  or  by  writ  of  ad  quod  damnum. 
If  the  plaintiffs  succeed  against  these  defendants  it  will  be  in  con- 
travention of  the  recording  acts,  (1  Sm.  Laws,  422,  &c.)  The 
first  notice  they  received  was  on  the  26th  of  June,  1833,,  after 
they  had  commenced  building  and  made  contracts,  for  which  they 
were  liable.  There  is  nothing  to  affect  either  of  them  Avith  pre- 
vious notice.  Sugden  on  Vendors,  532,  3  ;  Hyne  v.  Dods,  (2 
Atkyns,  %lbf).Billington  v.  Welsh,  (5  Binn.  131 ;)  Peebles  v. 
Reading,  (8  Serg.  &  R.  496 ;)  Scott  v.  Q-alloway,  (14  Serg.  & 
R.  333;)  Willis  on  Trustees,  65. 

Mr.  Charles  Ingersoll  and  Mr.  Wm.  M.  Meredith  for  the 
plaintiffs,  were  requested  by  the  Court  to  confine  themselves  to 
the  subjects  of  the  statute  of  limitations  and  the  notice  to  Fox 
and  Price. 

1.  The  statute  of  limitations  begins  to  run  only  from  the  time 
of  a  notoriously  adverse  possession.  Hawk  v.  Senseman,  (6 
Serg.  &  R.  21  ;)  Mercer  v.  Watson,  (2  Watts,  238.)  When  did 
that  commence  here  ?  The  plaintiffs  took  all  the  possession  that 
the  subject  admitted  of,  that  is  by  excavating  the  bed  of  the 
canal ;  and  continued  that  possession  until  a  very  recent  period. 
There  is  no  evidence  whatever  of  an  ouster.  On  the  contrary 
it  appears  that  the  company  have  sold  their  land  in  several 
instances.  We  find  also  that  Mr.  Young  recognized  the  title  of 
the  plaintiff  in  several  instances;  from  1798,  when  he  made  the 
memorandum  in  writing,  down  to  1821,  when  he  took  10  shares 
of  stock  in  the  present  company.  The  payment  of  taxes,  in  the 
case  of  wild  land  has  been  considered  as  evidence  of  possession ; 
but  the  presumption  has  never  been  extended  beyond  that  case. 
Here  in  fact  it  does  not  appear  that  Mr.  Young  paid  taxes  for 


422  SUPREME  COURT  [March  Term, 

(Union  Canal  Company  «.  Young.) 

the  land  in  question,  since  he  paid  for  eight  acres  only ;  and  as  to 
the  argument  derived  from  the  non-payment  of  any  taxes  by  the 
company,  it  was  held  in  The  Schuylkill  Bridge  Company  v. 
Frailey,  (13  S.  fa  R.  422,)  that  bridges  and  other  public  works, 
to  which  the  right  of  demanding  toll  is  annexed,  are  not  taxable. 
As  to  the  letting  by  Mr.  Young,  it  is  to  be  presumed  that  he  in- 
tended to  demise  only  that  part  of  his  land  which  he  had  not  sold 
to  the  plaintiffs.  Mr.- Young  was  both  a  trustee  and  tenant  in 
common.  16  Ves.  390 ;  Wallace  v.  Duffield,  (2  Serg.  &  R. 
527 ;)  Rush  v.  Barr,  (1  Watts,  120 ;)  M'Martin  v.  Bell,  (2 
Peters  Rep.  120;)  Johnston  v.  Humphreys,  (14  Serg.  &  R. 
394;)  7  Johns.  C.  R.  90;  Blanchard  on  Lim.  69;  Irvine  v. 
Turnpike  Company,  (2  Penn.  Rep.  466.) 

2.  It  is  not  very  material  whether  Fox  and  Price  are  to  be 
considered  purchasers  without  notice,  or  otherwise;  since  they 
have  not  paid  the  purchase-money ;  and  if  the  plaintiff  succeed, 
it  is  settled  by  our  law  that  they  will  have  a  sufficient  defence  on 
r*4931  their  mortgages.  *But  it  is  impossible  to  say,  that  they 
J  have  not  had-  notice.  The  possession  by  the  company 
was  such  as  to  strike  the  eye  at  once,  and  not  to  be  mistaken. 
The  evidence  shows  that  these  defendants  were  surveyors  of  the 
district ;  and  of  course  they  must  be  supposed  to  know  the  state 
of  things.  In  Billington  v.  Wehh,  a  notorious  possession  was 
said  to  be  sufficient.  Krider  v.  Lafferty,  (ante,  p.  303,)  shows 
that  what  ought  to  put  a  purchaser  on  inquiry  will  affect  him. 
Besides  actual  notice  was  given  to  them  in  time  to  prevent  any 
expenditure  of  money ;  and  the  circumstance  of  their  giving  mort- 
gages for  the  whole  purchase-money  shows  that  they  were  aware 
of  the  defect  in  the  title. 

Mr.  Broom  in  reply. 

This  case  differs  from  almost  all  others  mentioned  in  the  books ; 
since  it  is  an  attempt  to  compel  specific  performance  for  a  purpose 
entirely  different  from  that  originally  contemplated  by  the  parties. 
No  deed  has  been  executed ;  and  if  the  contract  is  to  be  consum- 
mated, it  ought  to  be  upon  the  terms  of  completing  the  Canal. 
The  evidence  shows  that  Mr.  Young  did  not  acquire  the  legal 
title  to  this  property  until  1795.  No  valid  agreement  could 
therefore  have  been  made  in  1793,  as  supposed  on  the  other  side. 
From  December  1799,  when  the  purchase-money  is  said  to  have 
been  paid,  the  possession  was  adverse.  The  Company  about  that 
time  abandoned  the  intention  of  cutting  a  canal.  The  possession 
supposed  on  the  other  side,  was  certainly  far  from  such  as  the 
law  contemplates.  Every  thing  showed  that  if  there  had  been  an 
attempt  at  a  canal,  it  was  abandoned.  The  fences  of  Mr.  Young 
were  like  those  of  the  neighborhood,  and  implied  continuity  of 


1836.]  OF  PENNSYLVANIA.  423 

(Union  Canal  Company  v.  Young.) 

possession.  The  payment  of  taxes  is  evidence  of  ownership  every 
where.  Besides,  it  appears  that  streets  were  opened  through  this 
land,  and  the  plaintiifs  never  interferred  or  claimed  damages.  If 
the  plaintiffs  intend  to  keep  up  a  claim  to  the  property,  they  should 
have  given  notice  by  ejectment,  or  otherwise,  at  an  earlier  period. 
In  1814,  at  least,  they  knew  that  the  claim  would  he  contested. 
The  following  cases  were  cited  or  commented  upon,  Smith  v.  Pat- 
ton,  (I  Serg.  &  R.  80  ;)  Jones  v.  Porter,  (3  Penn.  Rep.  135  ;) 
Piplier  v.  Lodge,  (16  Serg.  &  R.  224,  4  Serg.  &  R.  .569 ;)  Car- 
others  v.  Dunning,  (3  Serg.  &  R.  379  ;)  Frederick  v.  Gt-ray, 
(10  Serg.  &  R.  188  ;)  Pennock  v.  Freeman,  (1  Watts,  408  ;) 
Caul  v.  Spring,  (2  Watts,  396  ;)  Smith  v.  Patton,  (1  Serg.  & 
R.  84  ;)  1  Vernon,  229,  271 ;  1  Ves.  218. 

The  opinion  of  the  Court  was  delivered  by 

ROGERS,  J. — This  was  an  action  of  ejectment  to  recover  135 
perches  of  land.  On  the  trial  of  the  cause,  by  consent  of  parties 
a  verdict  was  taken  for  the  plaintiffs,  subject  to  the  opinion  of  the 
Court  upon  the  whole  case. 

*The  defendants  contend —  r*4?41 

1.  That  no  estate  passed  to  the  plaintiffs,  which  will     L 
entitle  them  to  recover  in  this  action. 

2.  That  if  any  estate  passed,  the  plaintiffs  have  lost  their  right 
to  recover. 

3.  That  the  defendants  may  rescind  the  contract. 

4.  That  for  part  of  the  land,  Fox  and  Price,  two  of  the  defend- 
ants, are  bona  fide  purchasers,  without  notice. 

By  the  second  section  of  the  act  of  the  29th  September,  1791, 
the  Company  have  the  power  of  purchasing,  taking  and  holding, 
to  them,  their  successors  or  assigns,  in  fee  simple,  or  for  a  lesser 
estate,  all  such  lands,  tenements,  and  hereditaments,  as  shall  be 
necessary  for  the  prosecution  of  their  work.  There  is  a  like 
provision  in  the  act  of  the  10th  April,  1796.  In  the  6th  section 
of  the  first  act,  it  is  provided,  "  That  it  may  be  lawful  for  the 
President  and  Managers,  to  contract  and  agree  with  the  owners 
of  the  lands  and  tenements,  for  the  purchase  of  so  much  thereof 
as  shall  be  necessary  for  the  purpose  of  making,  digging,  and 
perfecting  the  canal,  and  of  erecting  and  establishing,  all  the 
necessary  locks,  works  and  devices,"  &c.  if  they  can  agree  with 
such  owners  ;  but  in  case  of  disagreement,  &c.,  the  act  provides 
for  the  issuing  a  writ  of  ad  quod  damnum,  to  assess  the  damages 
done  to  the  owners  of  such  lands  and  tenements,  and  on  the  re- 
turn of  the  inquest  directs  the  Court  to  give  judgment,  and  de- 
clares, that  the  Company  shall  be  entitled  to  have  and  to  hold, 
to  them  and  their  successors  and  assigns  forever,  all  and  every 
the  lands  and  tenements,  &c.  in  the  said  inquisition  described,  as 


424  SUPREME  COURT  [March  Term, 

(Union  Canal  Company  r>.  Young. ) 

fully  and  effectually  as  if  the  same  had  been  granted  to  them  by 
the  respective  owners  thereof. 

It  is  immaterial  in  this  controversy,  whether  the  contract  of  sale 
between  Mr.  Young  and  the  Company  was  entered  into  on  the 
1st  of  April,  1792,  or  at  a  later  period.  The  effect  on  the  title 
is  precisely  the  same.  I  must,  however,  be  permitted  to  observe, 
that  the  evidence  shows,  most  clearly,  a  parol  contract  of  the  1st 
of  April,  1792,  of  which  a  memorandum,  in  writing,  was  made  in 
the  hand  writing  of  William  Young,  some  time  in  1798.  The 
contract  was  executed  by  the  entry  of  the  Company  on  the  land, 
excavating  it,  preparing  it  for  the  uses  and  purpose^  of  a  canal, 
and  by  payments  of  the  purchase-money.  The  resolution  of  the 
3d  May,  1796,  shows  that  the  contract  was  made  at  or  about  that 
period  of  time.  Be  this  as  it  may,  the  contract  was  made  under 
the  authority  of  the  acts  cited,  and  was  followed  by  the  Company 
taking  possession,  as  before  stated.  The  defendants  contend, 
that  under  this  contract  the  plaintiffs  acquired  an  easement  or 
right  of  way  only,  and  that  for  an  injury  to  such  an  interest,  eject- 
ment will  not  lie  ;  and  it  is  true,  if  it  be  an  easement,  ejectment 
r*4.9^1  ^s  n0^  ^ne  Pr°Per  remedy,  as  ejectment  *will  not  lie 
for  an  incorporeal  hereditament.  2  Yeates,  331  ;  4 
Day's  R.  330. 

It  will  not  admit  of  doubt,  that  the  Company  might  acquire, 
either  by  contract,  or  on  a  writ  of  ad  qnod  damnum,  a  right  to 
the  soil,  either  in  fee  simple  or  for  any  less  estate.  In  this,  the 
acts  are  express.  When  a  contract  is  made  for  a  purchase,  for 
the  use  of  the  canal,  as  well  as  for  the  use  of  an  individual,  the 
presumption  is,  as  against  the  grantor  or  bargainer,  that  the 
greater  estate  was  intended  to  pass.  In  the  note  or  memoran- 
dum of  Mr.  Young,  the  quantity  of  the  estate  is  not  mentioned  ; 
but  a  sale  of  lands  on  an  agreement  to  sell,  imports  a  fee.  Brooke, 
Abridgment,  title  Contract,  Bargain  and  Sale,  folio  169.  In  the 
case  of  a  corporation  aggregate,  if  a  freehold  passes,  it  must  be 
a  fee  or  an  estate  equivalent  to  it ;  for  in  a  grant  of  land  to  a 
corporation  aggregate,  the  word  successors  is  not  necessary, 
though  usually  inserted  ;  for  albeit,  such  simple  grant  be  only  an 
estate  for  life,  yet,  as  a  corporation  never  dies,  such  estate  for 
life  is  perpetual,  or  equivalent  to  a  fee  simple,  and  therefore  the 
law  allows  it  to  be  one.  (2  Black.  C.  109.)  The  bill  of  Mr. 
Young  has  nothing  on  its  face  which  indicates  that  he  sold  to  the 
company  the  right  of  way,  only  ;  and  if  that  had  been  his  inten- 
tion, it  should  have  been  so  expressed  in  the  instrument  itself. 
Nor  is  the  inference,  which  is  drawn  from  the  silence  of  Mr. 
Young,  to  be  rebutted  by  calculations  founded  on  the  value  of 
the  land  per  acre,  based  on  the  price  given  for  the  whole  tract, 
and  of  course,  including  in  the  estimate  the  improvements  which 


1836.]  OF  PENNSYLVANIA.  425 

(Union  Canal  Company  v.  Young.) 

were  on  the  property  at  the  time  of  his  purchase.  Calculations 
of  this  kind  would  be  too  uncertain ;  and  it  is  impossible  for  us  to 
say  for  what  reason  the  vendor,  (supposing  the  fact  to  be  as  is 
alleged),  chose  to  part  with  his  property  to  the  Company  for  less 
than  its  real  value.  On  the  argument  of  this  part  of  the  case, 
reliance  Avas  had  on  the  resolution  of  the  30th  June,  1796,  which 
directs  Mr.  Govett  to  give  credit  to  Mr.  Young  for  the  amount  of 
his  damages,  as  settled,  for  the  land  occupied  by  the  tract  of  the 
canal.  The  latter  part  of  the  resolution  is  nothing  more  than  a 
description  of  the  land  for  which  the  damages  are  directed  to  be 
paid;  and  as  to  the  word  " damages,"  the  Company  have  used 
the  term  which  is  used  in  the  6th  section  of  the  act  of  incorpora- 
tion ;  the  money  which  is  given  as  a  compensation  to  the  owner, 
is  given  as  his  damages ;  and  this  as  well  where  the  Company  ac- 
quire a  right  to  a  fee  simple,  as  any  less  estate. 

But  if  a  fee  simple  did  pass,  the  defendants  contend  that  the 
plaintiffs  have  lost  the  right  of  recovery.  Under  this  head  I  shall 
consider 

1.  The  statute  of  limitations. 

2.  That  equity  will  not  lend  its  aid  to  enforce  the  plaintiff's 
claim. 

3.  That  there  is  a  condition  annexed  to  the  contract,  which  has 
not  been  performed. 

4.  That  the  Company  was  dissolved  in  1811. 

*After  what  has  been  already  said,  we  must  take  it  r^io^-j 
that  the  plaintiffs  have  a  fee  simple  or  an  estate  equiva- 
lent thereto  in  the  property  in  controversy.  The  Company  had 
taken  possession  of  the  locus  in  quo,  by  excavating  and  embank- 
ing it,  and  filling  up  for  the  purposes  of  a  canal.  They  had  the 
only  possession,  which  they  were  entitled  to  ;  for  it  may  well  be 
doubted,  whether  they  would  have  been  at  liberty  to  have  taken 
an  exclusive  possession  of  the  property,  until  the  passage  of  the 
act  of  the  29th  March,  1810,  which  made  it  the  duty  of  the  Com- 
pany to  confine  its  operations  to  the  completion  of  the  commumni- 
cation  between  the  Tulpehocken,  Quittapahilla  and  Swatara  Creek. 
The  Company  have,  by  these  acts,  acquired  a  concurrent,  if  not 
an  exclusive  possession.  It  is  therefore  incumbent  on  the  defend- 
ants to  show,  either  an  abandonment  of  the  right,  or  an  ouster  of 
the  possession  so  acquired  and  held  by  the  Company,  and  a  hostile 
and  adverse  holding  by  the  defendants. 

As  to  the  allegation  of  an  abandonment  of  right,  there  is 
scarcely  a  pretence,  particularly  as  the  plaintiffs  had  taken  pos- 
session, and  held  the  property,  until  1819,  for  the  purpose  of 
complying  with  the  acts,  under  which  they  were  incorporated ; 
for  it  must  be  observed,  that  until  the  passage  of  the  act  of  1819, 
the  duty  and  right  to  make  the  canal,  remained  as  it  was  under 


426  SUPREME  COURT  [March  Term, 

(Union  Canal  Company  v.  Young. ) 

the  act  of  1792 ;  and  more  especially  will  not  the  doctrine  of 
abandonment  apply,  when  the  whole  amount  of  the  purchase 
money  has  heen  paid  ?  The  Company,  so  far  from  relinquishing 
the  right  of  property,  asserted  it,  not  only  as  to  this,  but  to  every 
other  parcel  of  land  held  under  similar  titles.  Indeed,  I  am  not 
aware  that  their  title  has  been  the  subject  of  dispute,  except  in 
this  instance.' 

The  entry  of  the  owner  of  land  is  barred  only  by  an  actual, 
continued,  visible,  notorious,  distinct  and  hostile  possession,  for 
twenty-one  years.  It  is  not  necessary  to  entitle  him  to  recover 
in  ejectment,  that  he  should  prove,  that  he,  or  those  under  whom 
he  claims,  have  been  in  possession  within  twenty-one  years,  before 
bringing  suit.  Hawke  v.  Senseman,  (6  Serg.  &  Rawle,  21 ;) 
Mercer  v.  Watson,  (1  Watts,  330  ;)  Rung  v.  Shoneberger,  (2 
Watts,  27.) 

The  title  draws  to  it  the  possession  ;  and  when  the  possession 
is  concurrent,  no  title  can  be  acquired  by  either,  on  the  ground  of 
an  adverse  holding.  The  defendants  claim  the  possession  to 
have  been  adverse  and  hostile,  because  Mr.  Young  paid  the  taxes 
for  the  property,  leased  the  land,  without  an  exception  of  the  part 
owned  by  the  company  ;  because  the  tenant  raised  a  crop  of  corn 
for  one  or  two  years  in  the  bed  of  the  canal ;  and  because  a  fence 
was  removed,  and  a  fence  run  across  the  line  of  the  canal.  I  see 
nothing  in  any  one,  or  all  the  circumstances  adverted  to,  which 
brings  this  case  within  the  rule  so  distinctly  laid  down  in  Hawke 
v.  Senseman,  and  the  other  cases  cited.  Mr.  Young  continued  to 
hold  and  enjoy  the  land  in  the  same  manner  as  he  had  been  ac- 
customed to  do,  at  the  time  when  the  company  were  confessedly 
P*4971  ^e  owners  °f  the  land.  There  *was  no  open,  visible  and 
notorious  change  in  his  conduct,  which  could  put  the 
company  on  their  guard,  and  make  it,  in  proper  time,  their  duty 
to  assert  their  right.  On  the  contrary,  from  any  act  of  his,  they 
could  not  have  the  slightest  suspicion,  that  it  was  his  intention  to 
dispute  their  right.  So  far  from  this,  he  acknowledged  their  title 
by  a  receipt  of  the  7th  May,  1821,  for  ten  shares  of  the  Union 
Canal  stock,  in  lieu  of  his  Delaware  and  Schuylkill  stock.  We  can- 
not in  justice  to  Mr.  Young,  suppose  that  at  that  time  he  had  any 
idea  that  he  held  the  possession  by  a  title  adverse  to  the  com- 
pany. It  admits  of  some  doubt,  whether  the  whole  tract  without 
allowance,  was  assessed  to  William  Young,  but  be  this  as  it  may, 
the  payment  of  the  taxes  under  the  circumstances  of  this  case, 
(supposing  the  interest  of  company  liable  to  taxation,)  furnished 
no  evidence  of  an  adverse  holding.  To  give  title  by  the  statute 
of  limitations,  the  possession  must  be  continued,  liaising  a  crop 
of  corn  for  a  year  or  two,  is  not  sufficient  to  give  title,  nor  will 
the  fact  that  a  fence  was  run  across  the  line  of  the  canal,  have 


1836.]  OF  PENNSYLVANIA.  427 

(Union  Canal  Company  «.  Young.) 

that  effect.  In  conclusion  on  this  part  of  the  case,  I  will  observe, 
that  the  rule  in  this  state  is,  that  when  there  is  a  given  state  of 
facts,  either  admitted  or  distinctly  proved,  whether  the  possession 
is  adverse,  is  a  question  of  law  ;  and  it  would  be  error  in  such  a 
case  to  submit  the  question  of  title,  to  be  determined  by  the  jury. 
Rung  v.  Shoneberyer,  (2  Watts,  27 ;)  Star  v.  Bradford,  (2 
Penn.  Rep.  384.)* 

It  is  suggested,  that  this  is  an  equitable  action,  and  that  it  is  a 
principle  in  a  Court  of  Chancery,  that  he  who  asks  equity,  must 
do  equity.  The  principle,  which  cannot  be  disputed,  applies  in 
its  full  force  to  an  executory  contract,  when  it  is  necessary  to 
invoke  the  aid  of  the  Court.  Chancery  leaves  the  party  to  his 
remedy  at  law,  unless  he  complies  with  the  equity  principles, 
which  govern  the  decision  of  the  Court.  I  am  not  aware  that 
the  same  strictness  is  applied  to  the  case  of  a  contract  executed 
by  delivery  of  possession,  and  payment  of  the  purchase  money  ; 
and  in  this  particular,  the  cases  cited  differ  from  this  case.  There 
is  a  discretion  undoubtedly  vested  in  a  Court  of  Chancery,  but 
this  is  not  an  arbitrary  discretion,  but  is  governed  by  certain 
fixed  and  well  denned  rules.  In  order  to  claim  the  benefit  of  the* 
rules,  it  is  necessary  for  the  defendants  to  show  that  they  are 
entitled  to  equitable  relief ;  and  this  must  depend  upon  the  con- 
struction of  the  contract.  The  equity  on  which  the  defendants 
rely,  is,  that  the  property  was  sold  by  William  Young,  on  the 
condition  of  making  the  canal,  which  condition  has  not  and  cannot 
be  performed.  They  contend  that  the  plaintiff  acquired  but  a 
base  or  qualified  fee  ;  and  if  it  be  so,  it  is  a  fiat  bar  to  the  plain- 
tiff's action. 

A  qualified,  base  or  determinable  fee  is  an  interest  which  may 
continue  forever  ;  but  the  estate  is  liable  to  be  determined  by  some 
act  or  event  circumscribing  its  continuance  or  extent.  The  in- 
stances which  are  usually  given  to  illustrate  the  species  of  estate, 
are  a  limitation  *to  a  man  and  his  heirs  so  long  as  A.  r* 4.00-1 
shall  have  heirs  of  his  body  ;  or  to  a  man  and  his  heirs,  *- 
tenants  of  the  manor  of  Dale,  or  till  the  marriage  of  B. ;  or  so 
long  as  St.  Paul's  Church  shall  stand,  or  a  tree  shall  stand.  In 
these  and  similar  cases,  the  estate  will  descend  to  the  heirs,  but 
continue  no  longer  than  the  period  mentioned  in  the  respective 
limitations,  or  when  the  qualifications  annexed  to  it  are  at  an 
end.  If  the  owner  of  a  determinable  fee  convey  in  fee,  the  de- 
terminable quality  of  the  estate  follows  the  transfer.  Nemo  potest 
plus  juris  in  alienum  transferre  quam  ipse  habet.  The  general 
policy  of  this  country  does  not  encourage  restraints  upon  the 

*See  4  Wharton,  300;  8  Watts,  439;  9  Id.  112;  10  Id.  141;  3  Casey, 
510;  7  Id.  126;  10  Id.  268,  308;  1  Wright,  118,  430;  4  Id.  500;  6  P.  P. 
Smith)  152. 


428  SUPREME  COURT  [March  Term, 

(Union  Canal  Company  v.  Young.) 

power  of  alienation  of  land.  A  qualified,  base  or  determinable 
fee  is  created  by  deed,  by  will,  or  by  some  otber  instrument  of 
writing  in  express  terms,  and  cannot  be  implied  by  law.  The 
instrument  which  creates  the  estate  shows  at  the  same  time  its 
limitations.  It  is  part  and  parcel  of  the  title,  and  hence  there  is 
no  injustice  in  the  purchaser  taking  the  estate  with  the  determi- 
nable quality  annexed  to  it;  but  here  there  is  nothing  in  the 
agreement  which  qualifies  the  nature  of  the  estate.  It  is  an 
absolute  sale  of  the  fee  simple  without  any  restraint  whatever ; 
and  it  would  be  wrong  that  the  vendee's  title  should  rest  partly 
in  writing  and  partly  in  parol.  If  Mr.  Young  intended  to  sell  a 
base  fee,  determinable  when  the  canal  ceased  to  be  used,  it  should 
have  been  so  expressed  in  the  written  evidence  of  the  contract. 
It  would  be  unjust  that  the  law  should  imply  this  as  a  condition 
annexed  to  the  agreement. 

The  act  of  incorporation,  as  has  been  before  stated,  authorizes 
the  company  to  purchase  an  absolute  right  of  property  in  the 
soil,  either  in  fee  simple  or  for  a  less  estate  ;  and  in  estimating 
the  price  the  owner  has  a  right  to  demand  its  outside  value, 
without  any  regard  to  any  supposed  advantage,  the  improvement 
may  be  to  any  other  property  which  he  may  possess.  The  same 
rule  governs  the  jury  in  estimating  the  damages  to  the  owner  on 
the  writ  of  ad  quod  damnum.  In  this  the  act  differs  materially 
from  the  recent  acts  of  the  Legislature,  which  direct  that  due 
regard  shall  be  paid  to  the  advantages  which  the  improvement 
may  be  to  the  owner.  In  this  contract  it  is  fair  to  suppose  that 
all  these  considerations  were  duly  weighed,  and  that  Mr.  Young 
took  his  chance  of  a  change  of  location,  or  any  change  of  inter- 
est, either  by  the  Legislature  or  the  Companv ;  if  so,  he  has  no 
more  right  to  complain,  when  he  has  received  the  estimated  value 
of  his  property  than  any  other  citizen  of  the  Commonwealth.  In 
The  Turnpike  Company  v.  Irvin  (2  Penn.  Rep.  466,)  it  was 
decided  that  the  benefit  which  results  to  individual  property,  by 
the  incorporation  of  a  company  and  location  of  a  public  road, 
does  not  in  contemplation  of  law  enter  into  the  consideration  of 
the  contract  of  subscription ;  and  such  subscriptions  are  neces- 
sarily subject  to  the  power  of  the  Legislature,  to  change  the 
location  of  the  road,  when  the  contrary  is  not  expressly 
stipulated. 

The  owner  has  no  assurance  of  any  benefit  which  may  arise  from 
f*42Ql  **^e  intcn(lcd  improvements,  unless  he  chooses  to  make 
that  a  part  of  the  contract.  He  depends  altogether 
upon  his  calculation  of  chances.  This  may  have  operated  upon 
the  mind  of  Mr.  Young.  It  is  most  likely  he  supposed  the  canal 
would  greatly  enhance  the  value  of  the  remainder  of  his  pro- 
perty. But  this  cannot  be  relied  on  as  a  circumstance  to  in- 


1836.]  OF  PENNSYLVANIA.  429 

(Union  Canal  Company  v.  Young. ) 

fluence  the  construction  of  the  contract.  A  person  may  pur- 
chase a  piece  of  property  from  a  view  of  erecting  a  factory,  or 
of  engaging  in  some  business  which  the  vendor  may  suppose  will 
be  highly  advantageous  to  the  neighbors,  and  particularly  to 
himself.  This  may  be  his  motive  for  making  the  sale,  and  may 
have  had  an  influence  on  the  price,  yet,  unless  it  be  made  a  part 
of  the  contract,  the  law  will  not  annex  a  tacit  condition  to  the 
sale,  that  it  shall  be  applied  exclusively  to  the  purposes  for 
which  it  was  originally  intended.  Nor  would  a  Court  of  Chancery 
interfere,  even  when  the  contract  was  executory,  on  an  allegation 
that  the  vendee  intended  to  apply  it  to  a  different  purpose,  unless 
there  was  fraud  in  the  vendee.  It  cannot  be  made  to  form  part 
of  the  consideration  of  the  contract,  unless  so  expressed  in  the 
agreement ; .  for  this  would  be  confounding,  as  is  said  in  the 
Turnpike  Company  v.  Irvine,  the  consideration  of  the  contract, 
with  the  motive,  which  induced  the  parties  to  enter  into  it. 
Want-  of  faith  on  the  part  of  the  company  is  not  alleged.  The 
alteration  in  the  original  plan  has  arisen  from  necessity  and  not 
from  choice. 

But  aside  of  those  general  principles,  I  cannot  see  what  right 
Mr.  Young  and  those  who  claim  under  him,  have  to  complain. 

By  the  act  of  the  29th  September,  1791,  the  legislature  incor- 
porated the  President,  Managers  and  Co.  of  the  Schuylkill  and 
Susquehanna  navigation,  for  opening  a  canal  and  lock  navigation 
between  the  rivers  Schuylkill  and  Susquehanna.  And  by  the  act 
of  the  10th  April,  1792,  they  incorporated  the  President,  Mana- 
gers and  Company  of  the  Delaware  and  Schuylkill  navigation  for 
opening  a  canal  and  water  communication  between  the  rivers 
Delaware  and  Schuylkill.  On  the  2d  of  April,  1811,  the  legis- 
lature, at  the  request  of  an  association  of  a  number  of  the  stock- 
holders of  the  two  companies  mentioned,  who  represented  that 
they  had  formed  a  joint  stock,  and  interest  under  the  title  of  the 
Union  Canal  Company  of  Pennsylvania,  repealed  all  the  acts 
before  passed  in  favor  of  the  Schuylkill  and  Susquehanna  navi- 
gation, and  of  the  Delaware  and  Schuylkill  navigation.  They 
enacted  that  the  corporate  title  of  said  corporation  should  cease 
and  be  abolished,  and  that  the  corporate,  style  and  title  of  the 
said  company  should  be  the  Union  Canal  Company  of  Pennsyl- 
vania, "  under  which  name  the  said  company  shall  have,  hold,  and 
enjoy,  all  estates,  grants,  rights,  interests  and  privileges  hereto- 
fore held  and  enjoyed  by  them  under  their  respective  titles" 

The  5th  section  directs  the  president  to  call  a  meeting  of  the 
stockholders,  upon  notice  given ;  and  upon  an  agreement  of  a 
majority  of  the  stockholders,  certified  to  the  Governor,  it  is  made 
his  duty  *by  proclamation,  to  declare  the  law  in  full  r*iqn-i 
force  and  effect.  It  further  provides,  that  if  any  of  the  *- 


430  SUPREME  COURT  [March  Term, 

(Union  Canal  Company  v.  Young.) 

stockholders  of  said  company  shall  neglect  or  refuse  to  deliver 
their  certificates  of  stock,  in  either  of  the  said  companies,  and 
accept  stock  in  the  Union  Canal  Company  of  Pennsylvania,  they 
may  bring  suit,  &c.  to  recover  a  just  compensation ;  and  their 
interest  in  said  company  shall  thereafter  cease.  In  March,  1815, 
they  passed  an  act  to  authorize  a  company  to  make  a  local  navi- 
gation in  the  river  Schuylkill.  On  the  29th  of  March,  1819,  the 
legislature  passed  the  act  supplementary  to  the  act,  entitled  "  An 
Act  to  incorporate  the  Union  Canal  Company  of  Pennsylvania." 
The  llth  section  makes  it  the  duty  of  the  company  to  confine  its 
operations  and  improvements  to  the  completion  of  the  communi- 
cation between  the  Tulpehocken,  Quittapahilla,  and  Swatara 
creek.  In  the  act  of  the  26th  March,  1821,  the  legislature 
guaranteed  the  interest  on  the  stock  of  new  subscribers,  author- 
ized by  the  act,  for  25  years.  And  on  the  7th  of  May,  1821, 
William  Young  received  10  shares  of  the  Union  Canal  stock,  in 
lieu  of  his  Delaware  and  Schuylkill  stock. 

This  short  reference  to  the  various  legislative  acts,  shows,  that 
up  to  the  period  of  the  passage  of  the  act  o*"  1819,  the  rights  and 
duties  of  the  company  remained  the  same  as  under  the  original 
acts  of  incorporation.  The  Legislature  having  incorporated  a 
company  for  making  a  slack  water  navigation  in  the  Schuylkill, 
and  by  this  means  secured  a  water  communication  with  the  inte- 
rior, thought  proper  to  relieve  the  Union  Canal  Company  from 
making  the  eastern  section  of  the  canal.  But  this  by  no  means 
impaired  their  right  to-  the  property  which  had  been  vested  in 
them  by  the  act  of  1811.  The  duty  of  completing  the  canal  was 
a  public  duty,  of  the  violation  of  which  William  Young  had  no 
more  right  to  complain  than  any  other  citizen,  and  over  which 
the  Legislature  had  a  complete  and  absolute  constitutional  juris- 
diction. They  had  the  exclusive  right  to  judge  of  the  expe- 
diency of  exempting  the  company  from  the  necessity  of  finishing 
what  they  had  so  unsuccessfully  begun  ;  and  of  the  policy  of  this 
course  there  can  be  now  but  one  opinion.  But  what  right  have 
the  representatives  of  William  Young  to  complain.  The  legis- 
lature reserved  to  him  the  right  to  compensation,  for  his  interest 
in  the  Delaware  and  Schuylfall  Company,  but  instead  of  availing 
himself  of  it,  with  a  full  knowledge  of  all  the  legislative  enact- 
ments, in  favor  of  the  Company,  and  a  certainty  that  the  work 
would  be  completed,  he  on  the  7th  of  May,  accepted  the  stock  in 
the  Union  Canal  Company,  and  surrendered  his  certificates  of 
stock  in  the  Delaware  and  Schuylkill  Company.  He  acquiesces 
in  the  transfer  of  the  property  to  the  Company ;  for  it  will  not 
do  for  him  to  avail  himself  of  the  advantages  of  the  change,  with- 
out at  the  same  time  submitting  to  any  inconvenience  or  loss  which 
may  attend  the  substitution  of  the  one  for  the  other. 


1836.]  OF  PENNSYLVANIA.  430 

(Union  Canal  Company  v.  Young.) 

I  have  looked  carefully  through  the^icts  which  relate  to  these 
*companies,  but  cannot  perceive,  that  at  any  time  there  r*4.qi  -\ 
was  even  a  suspension  of  the  rights  and  duties  of  the  L 
Company.  They  have  always  stood  in  full  force.  The  two  first 
companies  were  merged  in  the  Union  Canal  Company,  and  at  the 
same  time,  the  right  to  all  the  estate  was  vested  in  the  latter 
Company,  in  the  most  full  and  ample  manner.  There  has  been 
no  change  which  can  affect  the  right  to  any  estate  which  has  been 
vested  in  them.  It  follows  from  what  has  been  already  said,  that 
this  is  not  a  case  where  either  party  is  at  liberty  to  rescind  the 
contract,  particularly  after  the  great  change  which  had  taken 
place  in  the  circumstances  of  the  parties,  the  increased  value  of 
real  property,  in  that  vicinity,  and  the  express  recognition  and 
adoption  of  the  contract  by  Mr.  Young  in  1821.  Until  the  eject- 
ment was  brought,  there  was  no  offer  to  rescind  the  contract ;  and 
the  stipulation  which  has  been  filed,  cannot  be  permitted  now  to 
vary  the  rights  of  the  parties. 

One  other  question  remains,  Are  Price  and  Fox  bona  fide  pur- 
chasers without  notice  ? 

In  the  view  we  have  taken  of  this  cause,  it  is  unnecessary 
to  determine  whether  the  possession  of  the  Company,  and  the 
various  circumstances  disclosed  in  the  evidence,  were  sufficient 
notice  to  the  purchasers,  to  put  them  on  inquiry,  as  to  the  nature 
and  extent  of  the  interest  which  the  Company  had  in  the  prop- 
erty. The  defence,  amounts  in  equity  to  a  plea  in  bar,  alleging 
that  the  defendants  claim  under  a  purchaser  for  a  valuable  con- 
sideration, without  notice  of  the  plaintiffs'  title.  The  principle  of 
this  plea,  as  Lord  Eldon  observes,  in  Wallwyn  v.  Lee,  9  Vesey  24 ; 
and  Justice  Spencer,  in  18  Johns.  562,  is,  "  I  have  honestly  and 
bona  fide  paid  for  this  estate,  in  order  to  make  myself  the  owner 
of  it ;  and  you  shall  have  no  information  from  me,  as  to  the  per- 
fection or  imperfection  of  my  title,  until  you  deliver  me  from  the 
peril,  in  which  you  state  I  have  placed  myself,  in  the  article  of 
purchasing  bona  fide ."  To  the  validity  of  such  a  plea,  a  number 
of  particulars  are  absolutely  essential,  all  of  which  are  enumer- 
ated in  Sugd. -553;  and  in  4  Desaussure,  R.  280.  The  plea 
must  distinctly  aver  that  the  consideration  money  mentioned  in 
the  deed,  was  bona  fide  and  truly  paid,  independently  of  the  re- 
cital of  the  purchase  in  the  deed ;  for  if  the  money  be  not  paid, 
the  plea  will  be  overruled,  or  the  purchaser  is  entitled  to  relief 
against  the  payment.  A  consideration  secured  to  be  paid,  is  not 
sufficient.  It  seems  clear  from  the  authorities,  that  such  a  plea 
will  protect  the  possession  of  a,bona  fide  purchaser,  without  notice, 
from  an  equitabl  •  title,  although  even  that  has  been  sometimes 
questioned  ;  but  whether  it  will  avail  against  a  legal  title,  is  more 
doubtful.  From  a  review  of  all  the  authorities,  Sugden,  in  his 


431  SUPREME  COURT  [March  Term, 

(Union  Canal  Company  v.  Young.) 

treatise,  seems  to  think  ^t  clear,  that  the  plea  is  a  protection 
against  a  legal,  as  well  as  an  equitable  claim,  although  this  con- 
clusion has  been  doubted  by  Chancellor  Desaussure  in  8nelyrove 
v.  Snelyrove;  who  observes,  that  when  the  title  attempted  to 
be  set  up,  is  an  equitable  one,  it  seems  very  reasonable  that 
r+joQ-i  *the  Court  should  forbear  to  give  its  assistance  in  setting 
'  -I  up  such  equitable  title  against  another  title  set  up  by  a 
fair  purchaser.  But  when  the  complainant  comes  with  a  legal 
title,  I  do  not  perceive  how  he  can  be  refused  the  aid  of  the 
Court.  In  Pennsylvania,  under  our  recording  acts,  it  cannot 
well  be  doubted  that  it  would  be  a  valid  defence,  as  well  against 
a  legal  as  an  e.quitable  title.  More  v.  Mahon,  (1  Chan.  Cases 
34;)  Maitlandv.  Wilson,  (2  Atk.  241 ;  3  Atk.  314  ;)  Harding- 
ton  v.  Nichols  (3  Atk.  304 ;)  8nelgrove  v.  Snelgrove,  (4  Des. 
R.  287  ;)  Murray  v.  Minster,  (2  John.  C.  R.  157.) 

The  purchaser  is  not  protected,  if  he  has  notice,  previously  to 
the  execution  of  the  deeds  and  payment  of  the  purchase-money  ; 
for  till  then  the  transaction  is  not  complete;  and  therefore,  if 
the  purchaser  had  notice  previously  to  that  time,  he  will  be  bound 
by  it. 

In  England  the  rule  is  carried  to  a  great  extent  for  it  would 
seem  that  a  purchaser  is  not  protected,  unless  the  whole  purchase- 
money  has  been  paid.  This  precise  point  came  before  this  Court 
in  Youst  v.  Martin,  (3  S.  &  R.  423  ;)  where  the  English  doctrine 
was  overruled  ;  and  it  was  held,  that  where  the  purchaser  has 
paid  part  of  the  purchase-money,  the  owner  of  the  equitable  title, 
cannot  recover  the  land  without  repaying  the  money  paid  by  the 
purchaser,  before  receiving  notice.  With  this  equitable  qualifi- 
cation, the  rule  itself  is  distinctly  affirmed.  The  burthen  of 
proof  is  thrown  upon  the  purchasers  ;  and  in  this  instance,  the  de- 
fendants have  failed  to  prove  payment  in  whole  or  in  part  of  the 
consideration,  independently  of  the  recital  in  the  purchase-deed. 
The  consideration  is  secured  b^  mortgage  on  the  property  ;  but 
that,  as  has  been  seen,  is  not  sufficient,  inasmuch,  as  equity  will 
protect  the  purchaser  against  payment  of  it.* 

Motion  for  a  new  trial  overruled,  and  judgment 
on  the  verdict. 

Cited  by  Counsel,  3  Wharton,  492 ;  4  Id.  386  ;  4  Barr,  410  ;  2  Jones,  325  ; 
1  Casey,  513 ;  6  Id.  394  ;  7  Id.  144 ;  11  Id.  93 ;  3  P.  P.  Smith,  286,  479 ;  5 
Id.  88,  358  ;  6  Id.  482;  7  Id.  154;  2  Grant,  115. 

Cited  by  the  Court  below,  14  Wright,  433. 

Cited  by  the  Court,  7  Watts,  90 ;  10  Id.  29  ;  4  Watts  &  Sergeant,  400 ;  3 
Barr,  199;  5  Id.  140,  151  ;  1  Harris,  112;  6  Id.  Ill  ;  9  Id.  488 ;  1  Casey, 
360 ;  4  Id.  425 ;  10  Id.  401  ;  4  P.  P.  Smith,  19. 

Followed,  7  Watts  &  Sergeant,  160. 

*  See  4  Watts,  362  ;  9  Id.  189  ;  2  Jones,  116 ;  10  Casey,  255. 


1836.]  OF  PENNSYLVANIA.  433 

[*PHILADELPHIA,  APRIL  18,  1836.]  [*433] 

MOORE  and  Another  v.  HUMPTON. 

IN    ERROR. 

A  testator  gave  to  his  wife  all  his  estate  real  and  personal,  that  should  re- 
main after  payment  of  his  debts,  &c.,  adding,  "but  if  it  shall  be  the 
opinion  of  my  executors,  that  my  said  estate  is  more  than  sufficient  for 
comfortable  support  of  my  said  beloved  wife  during  her  life,  then  I 
direct  them  to  pay  to  L.  the  sum  of  £100,  when  the  settlement  of  my 
aftairs  shall  admit  of  its  being  done  without  inconvenience  to  my  afore- 
said wife,  &c.  And  I  further  direct  them  to  pay  or  transmit  to  my 
nephew  R.  H.  L.,  one  half  of  the  remainder  of  the  said  property,  if  any 
there  should  be,  that  my  said  wife  may  die  possessed  of;  and  the  other 
half  I  leave  to  her  disposal."  The  widow  of  the  testator  afterwards 
made  her  will,  which,  besides  various  legacies,  contained  the  following  : 
"  Item — I  devise  and  direct  that  one  half  part  of  all  my  estate  (after  pay- 
ment of  my  just  debts  and  funeral  expenses,)  be  paid  to  the  heirs  or  legal 
representatives  of  R.  H.  L.,  agreeably  to  the  will  and  intention  of  my 
late  husband,  excepting  thereout  my  household  furniture,  which  I  dis- 
pose of  as  hereinfter  mentioned."  .Held,  that  R.  H.  L.  was  entitled  to 
one  half  part  of  the  remainder  of  the  testator's  estate,  and  not  to  the 
half  part  of  the  estate  of  the  widow . 

UPON  a  writ  of  Error  to  the  District  Court,  for  the  City  and 
County  of  'Philadelphia,  it  appeared,  that  an  amicable  action  was 
entered  to  December  Term,  1834,  of  that  Court,  by  Lewis  Ed- 
wards Humpton  against  John  Wilson  Moore  and  Caleb  Peirce, 
executors  of  the  last  Will  and  Testament  of  Elizabeth  Humpton, 
deceased  ;  and  the  following  case  was  stated  for  the  opinion  of  the 
Court: 

"  Richard  Humpton,  being  seised  and  possessed  of  certain  real 
and  personal  estate,  died  on  or  about  the  20th  day  of  January,  A.  D. 
1805,  having  made  his  last  will  and  testament  dated  the  10th  of 
June,  A.  D.  1804,  which  was  duly  proved  on  the  29th  of  January, 
A.  D.  1805,  and  letters  testamentary  thereon 'granted  to  Elizabeth 
Humpton  and  John  D.  Steele,  executrix  and  one  of  the  executors 
named  in  said  last  Will.  The  following  is  a  copy  of  the  said 
Will: 

"1,  Richard  Humpton,  of  the  township  of  West  Bradford  in 
the  County  of  Chester  and  State  of  Pennsylvania,  being  infirm  in 
body,  but  of  sound  understanding  and  memory,  do  make  this  my 
last  Will  and  Testament,  hereby  revoking  and  disannulling  all 
former  Wills  and  Testaments,  as  follows,  namely : 

Item  1.  I  do  hereby  will  and  direct  that  my  executors  herein- 
after named,  shall  as  soon  after  my  decease  as  conveniently  may 
be,  cause  *an  impartial  appraisement  to  be  made,  and 
inventory  taken  and  recorded  in  the  office  at  West  Ches- 
ter  of  all  my  personal  estate,  and  that  they  shall  have  full  power 

VOL.  i.— 29 


434  SUPREME  COURT  \_March  Term, 

(Moore  v.  Ilumpton.) 

to  dispose  of  all  or  any  part  of  my  real  estate  for  the  purpose  of 
discharging  my  just  debts  and  funeral  expenses  and  fulfilling  the 
intention  of  my  will  as  hereafter  expressed. 

Item  2.  I  do  hereby  will  and  bequeath  to  my  beloved  wife 
Elizabeth  Humpton,  all  my  estate  real  and  personal  that  shall 
remain  after  my  just  debts  and  funeral  expenses  shall  have  been 
paid  as  before  mentioned ;  but  if  it  shall  be  the  opinion  of  my 
said  executors  that  my  said  estate  real  and  personal,  is  more  than 
sufficient  for  the  comfortable  support  of  my  said  beloved  wife 
during  her  life,  then  I  direct  them  to  pay  to  Lewis  Edwards 
Humpton,  the  sum  of  one  hundred  pounds,  when  the  settlement 
of  my  affairs  shall  admit  of  its  being  done  without  inconvenience 
to  my  aforesaid  wife  :  and  if  at  the  decease  of  my  aforesaid  wife, 
the  said  legacy  to  Lewis  Edwards  Humpton  shall  remain  unpaid, 
I  direct  my  surviving  executors  or  executor  to  pay  to  him  if  she 
dies  possessed  of  property  sufficient  for  that  purpose.  And  1 
further  direct  them  to  pay  or  transmit  to  my  nephew  Richard 
Humpton  Lister  of  the  North  Riding  of  Yorkshire  in  the  King- 
dom of  England,  one  half  of  the  remainder  of  the  said  property, 
if  any  there  should  be  that  my  said  wife  may  die  possessed  of ; 
and  the  other  half  I  leave  to  her  disposal. 

Item  3.  I  do  hereby  nominate  and  appoint  my  beloved  wife 
aforesaid  executrix,  and  my  esteemed  friends  Francis  Bailey  of 
Lancaster  County,  and  John  D.  Steele  of  Montgomery  County, 
executors  of  this  my  last  Will  and  Testament,  to  whom  I  transfer 
full  power  to  act  in  the  premises  and  make  good  and  sufficient 
djed  or  deeds  of  conveyance  of  all  or  any  part  of  my  estate,  as 
the  circumstances  thereof  shall  by  them  be  deemed  necessary." 

An  inventory  and  appraisement  of  all  the  personal  estate  of 
which  the  said  testator  was  possessed  at  the  time  of  his  decease, 
was  taken  and  made  a  short  time  afterwards  and  filed  in  the 
office  of  the  Register  for  the  probate  of  Wills  and  granting  Letters 
of  administration  for  the  County  of  Chester,  agreeably  'to  direc- 
tions contained  in  said  last  Will,  amounting  to  $7946  62,  prout 
said  Inventory  and  appraisement. 

The  testator  was  seised  at  the  time  of  his  death  of  certain  real 
estate :  1,  A  lot  of  woodland  in  East  Fallowfield  Township, 
Chester  County  ;  2,  A  tract  of  woodland  in  West  Bradford  Town- 
ship in  the  same  County  ;  3,  A  tract  of  land  situate  in  Oxford 
Township  ;  4,  A  tract  of  woodland  situate  in  said  Bradford  Town- 
ship. This  real  estate  was  afterwards  sold  by  the  executors,  in 
pursuance  of  the  powers  contained  in  said  Will,  and  produced  the 
following  sums,  viz. :  No.  1,  One  hundred  and  twenty  dollars  ; 
No.  2,  One  thousand  six  hundred  and  eighty-eight  dollars ;  No. 
^'  ^ne  *h°usancl  *dollars  ;  No.  4,  One  •  thousand  and 
sixty -six  dollars  sixty -six  cents. 


1836.]  OF  PENNSYLVANIA.  435 

(Moore  v.  Humpton.) 

The  accounts  of  the  executors  of  said  will  were  filed  by  John 
D.  Steele,  as  acting  executor,  on  the  3d  of  October,  1808,  in  the 
office  of  the  Register  of  Wills,  &c.  for  Chester  county,  as  afore- 
said, and  having  been  duly  transmitted  to  the  Orphans'  court,  were 
ofterwards  confirmed  by  said  court,  as  by  a  copy  therein  duly  cer- 
tified and  hereto  annexed  appears ;  which,  with  all  the  matter 
therein  contained,  is  made  part  of  this  case. 

Elizabeth  Humpton  having  received  the  several  sums  of  money 
charged  to  her  in  said  account,  and  the  amount  due  on  the  several 
bonds  therein  mentioned  as  deposited  with  her,  except  those  of 
Henry  Benner  and  John  D.  Steele,  having  been  paid  to  her, 
made  her  last  will  and  testament,  dated  the  20th  of  the  Seventh 
month,  (July,)  A.  D.  1821,  and  having  died  about  the  day  of 
A.  D.  1828,  the  said  will  was  duly  proved  on  the  9th  of  Octo- 
ber, 1828,  and  letters  testamentary  thereon  granted  to  Caleb 
Peirce  and  J.  Wilson  Moore,  the  above  named  defendants.  The 
following  is  a  copy  of  her  said  last  will. 

"  Be  it  remembered  that  I,  Elizabeth  Humpton,  of  the  city  of 
Philadelphia,  (widow  of  Richard  Humpton,  deceased)  being  of 
sound  and  well  disposing  mind,  memory  and  understanding,  do 
make  and  publish  this  my  last  Will  and  Testament  in  manner 
following,  that  is  to  say, 

First,  I  will  and  devise  that  all  my  just  debts  and  funeral  ex- 
penses be  duly  paid  and  satisfied. 

Item — /  devise  and  direct  that  one-half  part  of  all  my  estate 
(after  payment  of  my  just  debts  and  funeral  expenses)  be  paid 
by  my  executors  to  the  heirs  or  legal  representatives  of  Richard 
Humpton  Lister,  late  of  Yorkshire,  in  England,  deceased,  agree- 
ably to  the  last  Will  and  intention  of  my  late,  husband,  excepting 
thereout  my  household  furniture,  which  I  dispose  of  as  herein- 
after mentioned. 

Item — I  give  and  bequeath  to  my  esteemed  friend  John  Wilson 
Moore,  of  the  city  of  Philadelphia,  physician,  the  sum  of  one 
thousand  dollars,  also  my  small  desk. 

Item — I  give  and  bequeath  to  Lewis  Edward  Humpton,  of 
Chester  county,  Pennsylvania,  the  sum  of  two  hundred  and  fifty 
dollars,  including  the  fifty  dollars  wi!h  interest,  lent  him  in  the 
year  1810. 

Item — I  give,  and  bequeath  to  my  friend  Lydia  Jones,  (wife  of 
John  M.  Jones,  of  the  city  of  Philadelphia)  the  note  I  hold  of 
hers  for  one  hundred  and  fifty  dollars,  more  or  less. 

Item — I  give  and  bequeath  to  Henry  Benner  of  the  same 
city,  the  sum  of  one  hundred  dollars,  and  also  the  note  I  hold 
of  his. 

Item — I  direct  my  executors,  in  case  there  shall  be  a  suffi- 
ciency of  funds,  to  invest  in  the  best  manner  they  are  capable, 


436  SUPREME  COURT  [March  Term, 

(Moore  t>.  Humpton.) 

F*4Sn  ^e  sum  °^  *f°ur  hundred  dollars,  or  in  sums  to  that 
amount,  which  I  bequeath  and  direct  to  be  paid  to  the 
four  next  hereinafter  mentioned  legatees,  as  they  severally  come 
to  lawful  age,  to  wit,  to  Richard  Humpton  (son  of  the  said  Lewis 
E.  Humpton)  one  hundred  dollars;  to  Elizabeth  M.  Humpton, 
(daughter  of  the  said  Lewis)  one  hundred  dollars,  and  I  moreover 
give  her  half  a  dozen  of  my  silver  spoons — To  Ephraim  Hump- 
ton,  (son  of  the  said  Lewis)  one  hundred  dollars — To  Elizabeth 
Humpton  Mears,  (daughter  of  Benjamin  Mears,  of  the  city  of 
Philadelphia)  one  hundred  dollars ;  I  also  give  her  half  a  dozen 
of  my  silver  tea  spoons — each  of  the  said  sums  to  be  paid,  with 
its  proportional  part  of  the  interest  which  shall  have  accrued 
thereon. 

Item — All  the  residue  of  my  household  and  kitchen  furniture, 
of  every  description,  I  give  and  bequeath  to  the  said  Elizabeth  M. 
Humpton. 

Item — I  give  and  bequeath  all  my  wearing  apparel,  to  be  equally 
divided  between  Mary  Humpton  (wife  of  said  Lewis)  and  their 
daughters,  the  said  Elizabeth  and  Mary. 

Item — If,  after  paying  all  the  aforesaid  legacies,  there  shall  still 
remain  a  sufficiency,  then  I  further  will  and  direct,  as  hereinafter 
mentioned,  that  is  to  say,  I  direct  my  executors  to  procure  or  have 
made  a  neat,  plain  silver  tankard,  of  the  value  of  fifty  dollars, 
which  I  give  and  bequeath  to  my  beloved  friend,  Mary  Cuthbert 
—I  give  and  bequeath  to  the  contributors  to  the  Pennsylvania 
Hospital,  to  be  added  to  the  capital  stock,  the  sum  of  fifty  dol- 
lars— I  give  to  my  executors  fifty  dollars,  in  trust,  to  pay  the 
same  to  the  treasurer  of  the  Philadelphia  Monthly  Meeting,  for 
the  use  of  the  poor — All  the  rest  and  residue  of  my  estate,  what- 
soever and  wheresoever,  I  give  and  bequeath  the  same  to  my 
friend  John  D.  Steele,  of  Chester  county,  Pennsylvania,  and  the 
said  Lydia  Jones,  (wife  of  John  M.  Jones,)  to  be  equally  divided 
between  them,  part  and  share  alike. 

And  lastly,  I  nominate  and  appoint  my  friends,  the  said  John 
Wilson  Moore  and  Caleb  Peirce,  of  the  city  of  Philadelphia,  ex- 
ecutors of  this  my  last  will  and  testament,  and  I  do  hereby  revoke 
all  wills  by  me  heretofore  m&de. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal,  this 
twentieth  day  of  the  seventh  month,  (July,)  A.  D.  1821." 

At  the  time  of  her  decease,  the  said  Elizabeth  Humpton,  the 
testatrix,  had  in  her  possession  the  oond  and  mortgage  for  ,£15, 
and  the  note  for  .£12,  12«.,  given  by  Henry  Benner,  and  also  the 
bonds  and  mortgage  given  by  John  D.  Steele  for  .£1000,  which 
are  mentioned  in  the  said  accounts  of  the  executors  of  said  Rich- 
ard Humpton  to  have  been  deposited  with  her,  and  also  the  prin- 
cipal part  of  the  household  furniture,  mentioned  in  the  same 


1836.]  OF  PENNSYLVANIA.  436 

(Moore  v.  Humpton.) 

account  and  for  which  an  allowance  is  craved  for  "  deficiency  in 
sale,  occasioned  by  the  reservation  made  by  the  relict  of  the  de- 
ceased, of  plate,  furniture,  linen  *and  horse,  &c.,  for  r*4q7i 
her  own  use"  being  the  same  furniture  which  is  be-  "- 
queathed  by  her  in  her  will.  The  whole  fund  which  her  execu- 
tors have,  has  been  derived  from  the  following  sources,  viz. : 

A  bond  and  mortgage  of  Mary,  Margaret,  and  Eliza- 
beth Lisle,  given  to  said  Elizabeth  Humpton,  and 
dated  September  28th,  1827,  for  $2000  00 

A  bond  of  William  Coates  to  said  Elizabeth,  dated 

May  17, 1814,  for  364  00 

On  account  and  in  part  of  John  D.  Steele's  bond 
and  mortgage,  deposited  with  said  Elizabeth  as 
aforesaid,  855  45 

The  funds  now  in  the  hands  of  the  defendants  consist  of  the  fol- 
lowing investments : 

1.  Bond  and  mortgage,  2300  00 

2.  Chesapeake  and  Delaware  Canal  loan,  $392  65, 

worth  251  29 

3.  15  Shares  Commercial  Bank  stock,  992  48 
From  which  are  to  be  deducted  the  executors'  commissions  and 
certain  incidental  expenses  ;  amount  to  be  ascertained  by  attor- 
neys. 

Richard  Humpton  Lister  died  between  the  time  of  the  deaths  of 
Richard  Humpton,  and  his  widow,  Elizabeth  Humpton. 

1.  Did  Elizabeth  Humpton,  under  her  husband's  will,  take  an  ab- 
solute estate  in  all  the  property,  real  and  personal,  of  which 
her  husband  died  seised  and  possessed  ?  or 

2.  Did  she  take  but  a  life  estate  in  the  said  property,  with  a 
power  merely  to  dispose  of  so  much  thereof  as  might  be  neces- 
sary for  her  comfortable  support  during  life,  and  also  a  power 
to  dispose  absolutely  of  one  half  which  might  remain  at  her 
death  ? 

3.  In  case  the  court  should  be  of  opinion  in  the  affirmative  of  the 
second  question,  what  proportion,  if  any,  did  the  heirs  or  legal 
representatives  of  Richard  Humpton  Lister  take  under  the  will 
of  Elizabeth  Humpton,  of  the  funds  admitted  to  be  in  the  hands 
of  her  executors  ? 

If  the  court  should  be  of  opinion  in  the  affirmative  on  the 
first  question,  then  judgment  is  to  be  rendered  for  the  plaintiff 
for  the  principal  sum  bequeathed  by  said  Elizabeth  Humpton  to 
the  plaintiff,  with  half  interest  thereon  from  one  year  after  the 
said  Elizabeth's  death — If  the  court  should  be  of  a  different 
opinion  on  said  first  question,  then  the  judgment  to  be  entered 


437  SUPREME  COURT  [March  Term, 

(Moore  «.  Humpton.) 

for  the  plaintiff  or  defendants  as  its  opinion  upon  the  other  ques- 
tions shall  affect  the  assets  in  the  hands  of  the  defendants.  Either 
party  to  be  entitled  to  a  writ  of  error." 

On  the  14th  of  March,  1835,  the  District  Court  "being  of 
opinion  on  the  case  stated,  in  the  negative  of  the  first  question, 
and  in  the  *affirmative  of  the  second,  and  on  the  third 
question  that  Richard  Humpton  Lister's  heirs  or  legal 
representatives  took  nothing  under  the  will  of  Elizabeth  Hump- 
ton,  she  intending  merely  to  confirm  her  husband's  will,  ordered 
that  judgment  be  rendered  for  the  plaintiff  in  the  sum  of 
$169  82." 

The  defendants  took  a  writ  of  error  to  this  judgment. 

Mr.  J.  P.  Norris,  for  the  plaintiffs  in  error,  cited  Upwell  v. 
Hahey,  (1  Peere  Wms.  621  ;)  Smith  v.  Bell,  (6  Peters'  Rep. 
68.)  " 

Mr.  W.  M.  Meredith,  for  the  defendant  in  error,  cited  Morris 
v.  Phaler,  (1  Watts,  32.) 

PER  CURIAM. — Let  the  absolute  interest  of  Elizabeth  Hump- 
ton  have  been  what  it  may,  she  certainly  undertook  to  dispose  of 
no  more  than  she  had  power  to  dispose  of.  What  did  she  mean 
by  the  words  "one  half  part  of  all  my  estate,"  by  which  she  des- 
ignated the  subject  of  the  payment  directed  to  be  made  to  the 
legal  representatives  of  Richard  Humpton  Lister  ?  Clearly  not 
that  part  which  she  had,  in  any  event,  an  indisputable  right  to 
dispose  of;  but  all  that  was  her's  for  life  and  enjoyed  by  her  as 
such.  It  was  still  her  own  when  she  dictated  her  will.  The  di- 
rection is  declared  to  be  in  furtherance  of  her  husband's  arrange- 
ment, and  it  is  but  a  repetition  of  what  he  had  said.  She  never 
meant  that  the  representatives  of  Mr.  Lister  should  have  a  moiety 
of  the  part  left  at  her  disposal  in  addition  to  a  moiety  of  the 
whole  ;  and  the  only  supplementary  arrangement  made  by  her, 
was  to  direct  that  the  household  furniture  specially  bequeathed 
by  her  should  come  out  of  the  part  over  which  she  had  an  unquali- 
fied disposing  power.  The  result  of  this  construction  is  the  same 
that  would  be  produced  by  holding  her  to  have  been  the  absolute 
and  unlimited  owner  of  the  whole  estate  ;  and  according  to  the 
terms  of  the  agreement  the  plaintiff  below  was  entitled  to  the 
whole  of  his  legacy. 

Judgment  affirmed. 


1836.]  OF  PENNSYLVANIA.  439 

[•PHILADELPHIA,  APKLL  18,  1836.]  [*439] 

PEMBER'S  CASE. 

HABEAS    CORPUS. 

Where  a  person,  convicted  of  passing  counterfeit  bank  notes,  was  sentenced 
in  the  year  1828,  to  imprisonment  at  hard  labor  for  a  certain  number  of 
years  in  the  jail  and  penitentiary  for  the  city  and  county  of  Philadelphia, 
and  in  pursuance  of  that  sentence,  was  confined  in  the  Walnut-Street 
Prison  in  the  City  of  Philadelphia  ;  and  upon  the  sale  of  that  building, 
was  removed  with  other  prisoners  to  the  Arch-street  Prison  in  the  same 
city,  and  there  kept  without  being  put  at  hard  labor,  it  was  held,  that  he 
was  not  entitled  to  be  discharged  on  habeas  corpus. 

Ax  habeas  corpus  having  been  issued  to  the  keeper  of  the  Arch- 
Street  prison  to  bring  up  the  body  of  William  Pember,  alias 
Francis  Horner,  alias  John  King,  a  return  was  made  setting 
forth  four  several  sentences  on  convictions  in  the  Mayor's  Court 
for  the  city  of  Philadelphia,  at  June  Sessions,  1828,  on  four 
several  indictments  tried  in  that  Court ;  three  of  them  for  pass- 
ing counterfeit  bank  notes,  and  one  for  an  assault -with  intent  to 
murder. 

On  the  first  of  these  indictments  he  was  sentenced  to  undergo 
an  imprisonment  in  the  jail  and  penitentiary  of  the  city  and  county 
of  Philadelphia,  for  three  years  at  hard  labor,  to  be  fed,  clothed, 
&c.  as  the  law  directs ;  on  the  second  he  was  sentenced  to  a  like 
term  of  three  years  ;  on  the  third  to  five  years  ;  and  on  the  fourth 
to  one  year,  in  the  same  jail  and  penitentiary. 

The  convict  was  accordingly  taken  to  the  prison  on  Walnut- 
Street,  in  the  city  of  Philadelphia,  then  the  jail  and  penitentiary 
of  the  city  and  county,  and  there  confined  and  employed  in  pur- 
suance of  his  sentence. 

The  Legislature  having  authorized  the  sale  of  the  Walnut- 
Street  prison,  and  the  erection  of  a  new  penitentiary,  the  prison- 
ers confined  in  the  former  were  removed  in  the  autumn  of  1835, 
some  of  them  to  the  new  penitentiary  in  Moyamensing,  and  some 
to  the  Arch-Street  (or  Mulberry-Street)  prison.  Among  the  lat- 
ter was  the  person  now  brought  up  on  the  habeas  corpus. 

Mr.  R.  M.  Lee,  for  the  prisoner,  contended  that  he  was  entitled 
to  a  discharge.  He  cited  1  Christ.  Blackst.  88,  n.  19  ;  Acts  of 
1790,  §  17;  1792,  §  24,  31;  1816,  §  2;  1818,  §  5;  1821,  §  1; 
1823,  §  1,  3 ;  1824,  §  2. 

Mr.  Dallas,  contra. 


440  SUPREME  COURT  [March  Term, 

(Pember's  Case.) 
r*4401          *The  opinion  of  the  Court  was  delivered  by 

HUSTON,  J. — The  prisoner  is  brought  before  this 
Court,  and  his  discharge  is  asked  for,  because,  immediately  after 
sentence  was  passed,  he  was  confined  in  the  prison  in  Walnut- 
Street;  is  now  confined  in  the  prison  on  Mulberry  (commonly 
called  Arch)  Street,  where,  it  is  said,  he  is  not  kept  at  hard 
labor ;  and  because,  it  is  said,  he  may  be  removed  to  what  is 
called  the  Eastern  Penitentiary,  where  he  will  be  kept  at  hard 
labor  separate  and  apart  from  the  other  prisoners.  With  what  is 
to  be  done,  we  have  in  this  case,  at  present,  nothing  to  do ;  inquiry 
is,  in  such  a  case  as  this,  confined  to,  whether  the  prisoner  is  ille- 
gally detained. 

It  will  be  proper  to  refer  to  several  acts  of  assembly  relating 
to  the  prisons  of  Philadelphia  city  and  county,  and  of  the  com- 
monwealth, and  to  the  laws  changing  the  punishment  of  crime, 
from  corporal  punishment  to  hard  labor;  and  it  may  suffice  to 
say,  that  the  idea  is  of  ancient  origin ;  we  find  it  first  in  an  act 
of  Assembly  of  1705,  and  may,  perhaps,  safely  ascribe  its  origin 
to  Wm.  Penn:  after  the  war  of  our  revolution,  it  was  revived  and 
extended  in  its  application  to  many  offences ;  but  the  convicts 
labored  on  the  highways  or  in  other  public  places,  during  the 
day,  and  were. confined  in  prison  only  during  the  night,  and  then 
not  separated  from  each  other.  On  the  5th  of  April,  1790,  a 
law  was  enacted,  which  it  will  be  necessary  to  consult.  It  is  the 
basis  of  our  present  system,  or  more  properly,  it  is  the  present 
system,  though  at  first,  it  was  not  carried  into  effect  according  to 
its  spirit;  because  we  had  not  either  experience  or  suitable 
prisons.  The  preamble  to  that  act  states,  "  Whereas  the  laws 
heretofore  made  for  the  purpose  of  carrying  the  provisions  of  the 
constitution  (of  1776)  into  effect,  have  in  some  degree  failed  of 
success  from  the  exposure  of  the  offenders  employed  at  hard 
labor,  to  public  view,  and  from  their  communication  not  being 
sufficiently  restrained,  within  the  places  of  confinement,  and  it  is 
hoped,  that  the  addition  of  unremitled  solitude  to  laborious  em- 
ployment, as  far  as  it  can  be  effected,  will  contribute  as  much  to 
reform  as  to  deter." 

The  act  then  proceeds  to  direct  the  length  of  time  during  which 
persons  convicted  of  the  several  crimes  enumerated,  shall  be  sen- 
tenced to  be  confined  and  kept  at  hard  labor,  and  prescribes  the 
manner  of  feeding  and  clothing  them.  It  was  known  that  at  that 
time  the  prisons,  in  many  counties,  were  not  of  such  construction, 
either  in  form  or  materials,  as  to  be  fitted  for  the  purposes  of  this 
act,  and  in  the  8th  section  it  was  directed,  that  the  commissioners 
of  the  county  of  Philadelphia,  with  the  approbation  of  the  mayor 
and  two  alderman,  and  two  justices  of  the  quarter  sessions  of  the 
city  and  county,  shall  cause  to  be  constructed,  in  the  yard  of  the 


1836.]  OF  PENNSYLVANIA.  440 

(Pember's  Case.) 

jail  of  the  county,  a  suitable  number  of  cells  of  6  feet  in  width, 
8  feet  in  length,  and  9  feet  in  height,  &c.  &c.  and  the  said  cells 
shall  be  *  separated  from  the  common  yard  by  walls  of  r*  4.4-1  -i 
such  height,  as  without  unnecessary  exclusion  of  light, 
will  prevent  all  external  communication,  for  the  purpose  of  con- 
fining therein  the  more  hardened  or  atrocious  offenders,  who  by 
that  act  have  been  or  shall  be  sentenced  to  confinement  at  hard 
labor  for  a  term  of  years. 

By  section  10  it  is  provided,  that  the  residue  of  the  gaol  shall 
be  appropriated  for  the  purpose  of  confining  as  well  such  male 
convicts  sentenced  to  hard  labor,  as  cannot  be  accommodated 
in  the  cells,  as  well  as  all  other  prisoners  ;  all  of  whom  are  to  be 
kept  separate  and  apart  as  far  as  the  convenience  of  the  prison 
will  admit. 

Section  13,  after  prescribing  the  food,  clothing,  and  kinds  of 
labor,  in  which  the  convicts  are  \o  be  employed,  proceeds  to 
direct,  "  during  which  labor  the  said  offenders  shall  be-  kept  sep- 
arate and  apart  from  each  other,  if  the  nature  of  their  several  em- 
ployments will  admit  thereof." 

And  section  18  prohibits  from  entering  the  criminal  apartment, 
all  persons  except  the  keeper  and  assistants,  inspectors  of  the 
prison,  officers  of  justice,  counsel  or  attorneys  employed  by  the 
prisoners,  ministers  of  the  gospel,  and  those  to  whom  two  of  the 
inspectors  shall  give  a  written  permit. 

Now  it  is  most  apparent,  that  under  this  act  the  prisoners  sen- 
tenced to  confinement  at  hard  labor,  were  to  be  kept  separate  and 
apart  from  each  other  as  far  as  could  be  affected — that  is,  so  long 
as  the  number  of  cells  was  equal  to  the  number  of  convicts  ;  and 
where  this  was  not  the  case,  the  cells  were  by  this  and  other  acts, 
appropriated  to,  or  in  part  to  the  more  hardened  and  atrocious 
offenders. 

By  the  34th  section,  felons  convicted  in  any  county  of  the 
State,  for  which  he  or  she  shall  be  sentenced  to  hard  labor  for 
the  space  of  twelve  months  or  upwards,  might,  at  the  discretion  of 
the  Court,  be  removed  to  the  gaol  in  the  county  of  Philadelphia, 
&c.,  &c. 

Though  it  was  afterwards  provided,  that  those  sentenced  for 
two  years  or  upwards,  might  be  removed,  yet  the  number  of 
offenders  soon  greatly  exceeded  the  number  of  cells  which  were 
built,  or  which,  for  want  of  room,  could  be  built  within  the  gaol 
of  Philadelphia. 

By  an  act  of  22d  April,  1794,  it  was  provided,  (section  11,) 
that  every  person  convicted  of  the  crimes  enumerated  in  the  10th 
section,  "  shall  be  confined  in  the  gaol  and  penitentiary  house 
aforesaid,  and  shall  be  placed  and  kept  in  the  solitary  cells  thereof 
on  low  and  coarse  diet,  for  such  portion  of  his  or  her  imprison- 


441  SUPREME  COURT.  [March  Term, 

(Pember's  Case.) 

ment  as  the  Court  in  their  sentence  shall  direct  and  appoint ; 
provided  that  it  be  not  more  than  one  half,  nor  less  than  one 
twelfth  of  the  time,  and  the  inspectors  of  the  gaol  shall  have 
power  to  direct  the  infliction  of  the  said  solitary  confinement  at 
such  intervals,  and  in  such  manner  as  they  shall  judge  best." 
Whether  this  section  really  extended  to  change  the  punishment, 
and  indirectly  abolish  confinement  separate  and  apart  during  the 
f*4421  wh°le  °f  the  period  of  the  sentence  ;  or  whether,  *as  it 
J  was  perfectly  known,  that  every  offender  could  not  be 
kept  separate  and  apart  from  others,  for  there  were  not  enough  of 
apartments  for  the  purpose,  it  provided,  that  certain  offenders  con- 
victed of  certain  specified  atrocious  crimes,  should  at  all  events, 
spend  part  of  the  time  prescribed  by  the  sentence  in  the  solitary 
cells,  might  admit  of  tedious  discussion ;  but  has  become  immater- 
ial because,  either  in  express  terms  as  to  many  offences,  or  by  im- 
plication stronger  than  is  found  in  this  act,  it  had  ceased  to  have 
any  force  before  the  present  sentences  were  passed ;  besides  in 
terms,  taking  the  10th  and  llth  sections  together,  it  only  applied 
to  those  convicted  in  and  sent  from  other  counties  to  the  prison  at 
Philadelphia. 

On  the  5th  of  April,  1790,  the  prison  of  the  city  and  county  of 
Philadelphia  was  bounded  on  Walnut^Street,  Sixth-Street  and 
Prune-Street,  and  after  other  prisons  were  erected,  was  called  the 
Walnut-Street  prison,  the  city  and  county  prison,  the  old  prison 
promiscuously  ;  and  a  part  of  it  appropriated  to  debtors,  &c.,  &c., 
was  called  the  Prune-Street  apartment  of  the  prison. 

In  process  of  time  it  became  necessary  to  erect  other  prisons ; 
and  one  having  been  commenced  on  Arch-Street,  an  act  of  As- 
sembly of  31st  March,  1881,  was  passed,  appropriating  twenty- 
five  thousand  dollars  toward  completing  it ;  the  2d  section  pro- 
vides, that  "  immediately  after  the  said  prison  shall  be  completed 
and  suitable  for  the  admission  of  prisoners,  the  inspectors  may, 
if  they  think  proper,  cause  to  be  removed  thereunto  all  or  any 
of  the  pereons  convicted  of  crimes  and  misdemeanors,  that  may 
be  then  confined  in  the  prison  of  the  city  and  county  of  Philadel- 
phia, and  if  necessary,  to  receive  into  the  said  prison  from  time 
to  time,  all  persons  that  shall  hereafter  be  convicted  in  this  com- 
monwealth, and  subject  to  hard  labor  by  the  existing  laws  in 
the  gaol  and  penitentiary  of  the  city  arid  county  of  Philadel- 
phia;" and  the  said  new  prison  was  thereafter  to  be  the  exclusive 
property  of  the  commonwealth:  (this  was  afterwards  changed, 
and  it  became  the  property  of  the  city  and  county.)  The  act  of 
2d  April,  1803,  had  provided  for  the  removal  of  prisoners  (not 
convicts)  to  the  Arch-Street  prison  ;  that  of  1812  had  provided 
for  the  removal  of  prisoners  convicted  of  crime,  as  soon  as  the 
prison  was  completed  for  their  admission :  from  some  causes  the 


1836.]  OF  PENNSYLVANIA.  442 

(Pember's  Case.) 

Arch-Street  prison  was  long  before  it  was  completed  on  the  origi- 
nal plan  ;  perhaps  it  never  was  so  completed,  and  never  may 
be.  On  the  15th  of  March,  1816,  an  act  was  passed  declaring, 
"  that  the  commissioners  of  the  city  and  county  of  Philadelphia 
are  hereby  authorized  to  prepare  such  parts  of  the  new  prison  in 
Arch-Street  as  may  be  necessary  for  the  comfortable  and  safe 
keeping  of  such  persons  as  may  be  confined  for  debt  in  the  city 
and  county,"  and  to  use  the  debtors'  apartment  in  the  old  prison 
for  convicts. 

On  the  3d  March,  1818,  provisions  were  made  for  erecting  a 
penitentiary  on  the  public  ground  in  the  Town  of  Allegheny,  to  be 
used  *as  a  place  of  confinement  for  convicts  from  the 
western  section  of  the  state ;  by  the  5th  section,  the  in- 
spectors, county  commissioners,  and  others  named,  are  authorized 
to  sell  the  prison  and  lots  on  which  it  is  situated  on  Walnut  and 
Prune  Street.  The  6th  section  declared,  that  "  whenever  a  sale 
of  said  prison  and  lots  shall  have  been  effected,  the  inspectors 
shall  as  soon  as  conveniently  may  be,  cause  all  persons  then  con- 
fined therein,  to  be  removed  to  the  new  prison  on  Mulberry-Street, 
and  there  safely  kept,  fed,  clothed,  treated  and  dealt  with  accord- 
ing to  law,  and  to  continue  them  therein  until  duly  discharged,  or 
removed  to  such  other  penitentiary  or  prison,  as  shall  be  erected 
for  their  reception  and  safe-keeping."  And  section  7th  author- 
ized the  purchase  of  a  suitable  lot  for  a  new  penitentiary :  section 
8th  authorized  the  inspectors  to  erect  on  the  lot  so  purchased,  a 
new  penitentiary  or  public  prison  adapted  to  the  solitary  confine- 
ment of  convicts. 

The  prisoner  was  tried  and  convicted  since  the  enactment  of  this 
law.  The  prison  on  Walnut  and  Prune  Streets  has  been  sold. 
The  prisoner  has  been  removed  to  the  prison  on  Arch-Street :  a 
new  penitentiary  has  been  erected ;  and  by  the  act  of  28th  March, 
1831,  (section  6,)  it  is  provided,  that  the  inspectors  of  the  jail 
and  penitentiary,  on  the  first  Monday  in  April,  1833,  or  as  soon 
thereafter  as  conveniently  may  be,  shall  remove  all  the  convicted 
criminals,  who  may  remain  in  the  said  jail  and  penitentiary,  to  the 
state  penitentiary  for  the  eastern  district,  there  to  be  imprisoned, 
kept  and  punished  according  to  law  and  their  several,  sentences, 
until  duly  discharged ;  with  a  proviso  that  the  penitentiary  be  then 
prepared  for  their  reception. 

Applications  to  a  Court  on  habeas  corpus  are  made  by  persons 
under  very  different  circumstances,  A  person  may  apply  who  is 
restrained  or  deprived  of  his  liberty,  without  any  cause  justifying 
such  restraint ;  and  on  this  appearing  the  person  is  ordered  to 
be  discharged.  In  the  present  case,  the  prisoner  is  confined 
under  a  sentence  or  sentences  of  a  competent  Court  of  record  ; 
which  sentences  are  in  due  form  of  law,  not  even  complained  of ; 


443  SUPREME  COURT  [March  Term, 

(Pember's  Case.) 

but  the  application  is  founded  on  the  allegations,  that  the  prisoner 
could  not  have  been  legally  removed  to  the  prison  on  Arch  street. 
It  was  not  contended  and  could  not  be  with  propriety,  that  when 
a  prison  was  too  small  or. too  insecure,  the  Legislature  could  not 
authorize  the  building  a  new  one,  and  direct  the  prisoners  to  be 
removed  to  it.  There  was  however,  a  mistake  of  fact  in  supposing 
there  was  no  law  expressly  authorizing  the  removal  of  persons 
convicted  of  crime  to  the  Arch  street  prison.  There  are  at  least 
two  express  acts  on  the  subject  above  cited. 

Another  ground  was  taken,  viz.  that  the  prisoner  is  not  kept 
at  hard  labor  ;  and  further,  that  the  prison  as  it  now  is,  is  not 
adapted  to  keeping  prisoners  at  hard  labor.  This  then  presents 
the  case  of  a  person  legally  confined,  but  who  alleges  he  is  not 
r*4441  Ie8a%  treated.  If  the  *keepers  misbehave,  by  using 
undue  rigor  or  imposing  hardships  or  severities  on  the 
prisoner  not  authorized  by  law,  they  may  be  punished  by  a  proper 
proceeding,  before  the  proper  tribunal ;  or  if  the  misbehavior 
consists  in  undue  indulgence,  in  not  imposing  on  the  offender  the 
sentence  of  the  law,  they  are  answerable  for  such  conduct,  unless 
some  justifying  cause  is  shown.  But  in  no  case,  it  is  believed, 
will  the  mistake  or  misconduct  of  the  keeper  give  the  criminal  a 
right  to  a  total  discharge  from  his  sentence  :  it  would  amount 
to  giving  the  keeper  and  inspectors  the  pardoning  power.  It 
would  greatly  extend  the  power  of  this  Court ;  it  would  give  it 
the  power  equivalent  to  pardoning  a  criminal,  for  the  strange 
reason  that  some  other  person  had  been  either  too  severe  or  too 
indulgent. 

The  acts  of  Assembly  cited,  would  seem  to  be  express  that  all 
prisoners  in  the  Walnut-street  prison  should,  when  it  was  sold,  be 
removed  to  Arch  street  prison,  and  as  soon  as  the  cells  in  suf- 
ficient number  were  ready  for  their  reception,  the  convicts  should 
be  removed  to  the  Eastern  penitentiary.  It  is  not  among  the 
facts  submitted  to  us,  but  it  seems  to  be  assumed  that  it  is  now 
completed  ;  and  some  part  of  the  argument  went  to  the  question 
whether  the  prisoner  could,  if  sent  there,  be  kept  at  hard  labor, 
separate  and  apart  from  all  others — I  repeat  that  this  matter  can- 
not be  now  legally  before  us  ;  but  I  will  suggest  some  consider- 
ations which  may  be  useful  to  those  taking  an  interest  in  these 
matters. 

It  has  appeared  that  by  the  act  of  5th  of  April,  1790,  the  hard 
labor  to  which  offenders  were  to  be  sentenced,  was  to  be  per- 
formed separate  and  apart  from  each  other,  so  far  as  the  same 
could  be  effected  or  the  nature  of  the  labor  would  admit.  The 
act  of  1794,  in  sections  10  and  11,  applies  to  convicts  sentenced 
in  counties  other  than  Philadelphia,  and  applies  to  persons  con- 
victed of  any  crime,  (other  than  murder  in  the  first  degree,)  which 


1836.]  OF  PENNSYLVANIA.  444 

(Reddill's  Case.) 

now  is,  or  on  15th  of  September,  1786,  was  capital  or  felony  of 
death  ;  or  of  uttering  counterfeit  coin  of  the  United  States,  or  of 
counterfeiting  or  uttering,  or  uttering  or  passing,  knowing  them 
to  be  counterfeit,  the  notes  of  the  bank  of  Pennsylvania,  bank 
of  North  America,  or  bank  of  the  United  States.  Now  the  pris- 
oner is  convicted  on  indictments  for  passing  counterfeit  bank 
notes,  and  one  for  stabbing  with  intent  to  kill  and  murder.  The 
last  is  not  within  the  act  of  1794,  it  was  never  capital  or  felony 
of  death  ;  and  the  whole  law  respecting  counterfeiting  coin,  and 
forging,  or  passing  forged  bank  notes,  was  changed  by  the  act  of 
25th  of  March,  1824 ;  and  the  person  convicted  of  this  offence 
is  to  be  sentenced  to  hard  labor  for  a  period  not  exceeding  ten 
years  nor  less  than  one  year,  fined  not  exceeding  1000  dollars, 
and  to  be  kept,  treated  and  dealt  with  in  all  respects  as  other 
convicts  now  are  or  may  hereafter  be,  by  law.  The  prisoner 
committed  his  crimes  and  was  convicted  and  sentenced  after  this 
law  was  enacted  ;  and  is  subject  to  its  provisions. 

He  was  then  rightly  removed  from  Walnut-street  prison  to  the 
*prison  on  Arch-street ;  and  if  the  Eastern  penitentiary  rsMje-i 
is  prepared  for  the  reception  of  convicts,  he  ought  to  be  •- 
removed  to  it — if  there  is  room — there  to  be  "  imprisoned,  kept 
and  punished  according  to  law  and  his  sentence."  But  we  can- 
not discharge  him,  or  do  what  in  effect  would  amount  to  a  remis- 
sion of  his  sentence,  even  if  the  keepers  or  inspectors  have  been 
remiss  in  not  having  removed  him  sooner. 

Remanded. 
See  the  next  case. 


[PHILADELPHIA,  APKIL  18,  1836.] 
REDDILL'S  Case. 

HABEAS  CORPUS. 

A  person  convicted  in  the  City  and  County  of  Philadelphia,  and  sentenced 
in  1830,  to  imprisonment  in  the  jail  and  penitentiary  in  that  City  and 
County,  for  a  term  of  two  years  or  more,  ought,  upon  the  sale  of  that 
prison,  to  have  been  removed  to  the  Eastern  Penitentiary,  and  not  to  the 
Moyamensing  prison  ;  but  this  Court  will  not  for  that  cause  discharge 
the  prisoner  on  habeas  corpus. 

IN  this  case  an  habeas  corpus  had  been  issued  to  the  keeper  of 
the  jail  of  the  City  and  County  of  Philadelphia,  to  bring  up  the 
the  body  of  John  Reddill  alias  John  Reading. 


445  SUPREME  COURT  [March  Term, 

(Reddill's  Case.) 

The  return  set  forth  that  the  prisoner  was  confined  under  two 
sentences  of  the  Court  of  Quarter  Sessions  for  the  County  of 
Philadelphia,  on  the  8th  of  June,  1830,  on  convictions  for  lar- 
ceny. The  first  sentence  was  to  undergo  an  imprisonment  at 
hard  labor  for  3  years,  to  be  fed,  clothed  and  treated  as  the  law 
directs.  The  second  was  for  a  like  term,  to  commence  on  the  ex- 
piration of  the  former  sentence. 

The  convict  in  this  case  had  been  confined  in  the  Walnut  street 
.prison  ;  but  upon  the  completion  of  the  Moyamenging  prison,  he 
was  transferred  to  that  building  and  there  kept  in  solitary  con- 
finement. 

Mr.  Binns,  (who  stated  that  he  had  been  requested  by  the  in- 
spectors of  the  prison  to  bring  the  subject  before  the  Court,) 
cited  the  acts  of  30th  of  March,  1831,  and  14th  of  April,  1835. 


The  Arch-street  and  Walnut-street  prisons  are  both 
County  prisons.  This  prisoner  was  one,  who  by  the  7th  and 
15th  section  of  the  act  of  1831,  was  liable  to  be  sent  to  the 
Moyamensing  prison.  Solitary  confinement  was  used  in  the 
Walnut-street  prison  by  virtue  of  the  19th  section  of  the  act  of 
1790  ;  but  it  is  true  only  in  certain  specified  cases.  How  far  the 
act  of  1831  is  constitutional  is  another  question.  It  does  not 
appear  by  the  return  that  this  prisoner  is  in  solitary  confinement  ; 
and  it  is  not  easy  to  perceive  how  this  Court  can  interfere  on  a 
habeas  corpus.  In  their  characters  as  visitors,  the  judges  have 
a  right  to  inquire  into  the  discipline  of  the  prison  ;  but  upon  a 
}ial>eas  corpus,  the  only  question  is,  whether  the  prisoner  shall  be 
discharged  or  not. 

The  opinion  of  the  Court  was  delivered  by 

HUSTON,  J.  —  It  will  not  be  necessary  in  this  case  to  recur  to 
all  the  acts  of  Assembly  referred  to  in  the  last  case. 

Early  in  this  century  it  was  contemplated  to  build  a  second 
prison  in  this  city,  to  be  situated  on  Arch-street  ;  that  prison 
was,  after  much  delay  and  interruption,  built  ;  but  before  it  was 
completed,  laws  passed  for  building  a  penitentiary  for  the  western 
counties  at  Allegheny,  and  one  for  the  eastern  counties  at  Phila- 
delphia ;  and  for  this  and  other  reasons  the  inside  of  the  prison 
on  Arch-street,  seems  never  to  have  been  completed  on  the  plan 
of  making  it  an  extensive  penitentiary  ;  though  by  the  laws  of 
1812  and  1818,  both  of  which  directed  a  sale  of  the  old  Walnut- 
street  prison,  all  prisoners  in  it,  when  it  was  sold,  were  to  be 
removed  to  the  Arch-street  prison.  The  old  prison  was  not  sold 
until  1835,  and  by  that  time  the  Eastern  penitentiary  was  com- 


1836.]  OF  PENNSYLVANIA.  446 

(Reddill's  Case.) 

pleted ;  and  at  the  time  the  act  of  the  28th  of  March,  1831,  had 
enacted,  that  all  persons  convicted  in  any  county  in  the  eastern 
District  of  Pennsylvania,  and  sentenced  to  one  year's  imprison- 
ment at  hard  labor,  or  more  than  one  year,  should  be  confined  in 
the  said  Eastern  penitentiary  ;  and  further  had  provided  by  the 
6th  section,  that  the  inspectors  on  the  1st  of  April,  1833,  or  as 
soon  thereafter  as  conveniently  may  be,  shall  remove  all  the  con- 
victed criminals,  who  may  then  remain  in  the  jail  and  peniten- 
tiary, to  the  aforesaid  State  penitentiary  for  the  eastern  District, 
there  to  be  imprisoned,  kept,  &c.  &c. 

Two  days  after  this  act,  viz.  on  the  30th  of  March,  1831,  an 
act  passed  to  build  a  new  prison  and  debtors'  apartment  for  the 
City  and  County  of  Philadelphia,  and  for  the  sale  of  the  Walnut- 
street  prison.  The  8th  section  provided,  that  every  person  con- 
victed in  the  City  or  County  of  Philadelphia,  and  sentenced  to 
confinement  for  one  year  or  less,  should  be  confined  in  this  new 
prison,  if  then  erected.  A  supplement  to  this  act  was  passed  on 
the  14th  of  April,  1835.  The  13th  section  is  a  transcript  of  the^ 
6th  section  of  the  last  law,  except  that  it  *embraces  the 
case  of  all  persons  convicted  in  the  City  or  County  and 
sentenced  to  confinement  for  any  time  under  two  years. 

The  15th  section  provides,  that  so  soon  as  said  prison  shall  be 
completed  and  prepared  for  the  reception  of  prisoners,  it  shall 
be  the  duty  of  the  inspectors  appointed  under  this  act,  to  cause 
to  be  removed  to  said  prison  all  persons  who  may  be  confined  in 
the  prison  on  Arch-street,  in  the  said  city,  excepting  debtors 
and  witnesses ;  and  the  said  inspectors  were  thereby  authorized 
to  call  upon  the  sheriif  of  the  City  and  County  of  Philadelphia, 
for  such  aid  as  they  may  think  requisite  to  remove  said  prison- 
ers ;  and  thenceforth,  all  prisoners,  who  by  the  existing  laws  of 
this  Commonwealth,  were  liable  to  be  confined  in  the  Arch- 
street  prison,  "shall  be  respectively  sent  to  the  Philadelphia 
County  prison,  there  to  be  kept  in  separate  or  solitary  confine- 
ment, and  fed,  and  clothed  and  treated  according  to  the  pro- 
visions of  this  act,  and  the  rules  and  regulations  to  be  made  by  the 
inspectors  in  conformity  therewith." 

This  section  would  seem  to  be  plain  and  express  ;  but  the  next 
section,  16,  makes  it  the  duty  of  the  inspectors  to  remove  from 
the  prison  in  Walnut-street,  all  crimimals  who  may  have  been 
convicted  and  sentenced  in  any  court  of  the  City  and  County  of 
Philadelphia,  for  a  term  under  two  years,  and  remove  them  to 
the  new  prison,  there  to  be  kept  in  solitary  confinement  at  hard 
labor,  and  fed,  &c.  &c.  Now,  it  seems  strange  that  from 
Walnu^street  prison,  only  such  as  had  been  sentenced  to  con- 
finement under  two  years,  were  to  be  removed ;  but  from  Arch- 
street,  all  were  to  be  removed  to  the  new  prison,  without  regard 


447  SUPREME  COURT  [March  Term, 

(Reddill's  Case.) 

to  the  length  of  time  to  which  they  were  sentenced ;  and  the  diffi- 
culty is  not  removed  by  referring  to  the  6th  section  of  the  act  of 
the  28th  of  April,  1831,  for  removing  all  convicts  to  the  East- 
tern  penitentiary.  That  act  was  in  the  view  of  the  Legislature, 
for  in  the  18th  section  they  say,  "  as  soon  as  the  prisoners  now 
in  the  Walnut-street  and  Arch  street  prisons  are  removed  to  the 
Philadelphia  County  prison  and  the  Eastern  penitentiary,  as 
provided  in  the  act  of  28th  of  March,  1828,"  (there  is  no  act  of 
that  date  or  year  on  the  subject,  and  it  should  be  1831,)  and  by 
this  act,  "  all  the  rights,  powers,  and  privileges  at  this  time 
vested  in  and  exercised  by  the  board  of  inspectors  of  the  jail  and 
penitentiary  house  of  the  County  of  Philadelphia,  shall  be  trans- 
ferred to  and  vested  in  the  board  of  inspectors  of  the  Philadel- 
phia County  prison,"  &c. 

After  a  full  and  deliberate  examination  of  the  several  acts,  we 
cannot  avoid  seeing  that  there  is  something  like  a  direction  to 
remove  a  certain  class  of  convicts  to  the  new  city  prison ;  which 
convicts  by  other  clauses,  are  directly  ordered  to  be  removed  to 
the  Eastern  penitentiary ;  and  so  much  is  this  the  case  as  to 
excuse,  and  perhaps  justify  a  removal  to  either ;  but  we  have 
come  to  the  conclusion  that,  from  all  Jhe  acts,  the  construction 
must  in  accordance  with  the  general  design,  and  also  consist- 
ently with  the  letter,  be,  that  all  convicts  in  confinement,  either 
r*J481  *n  ^a^nu^  or  Arch-street  prison,  who,  *by  their  sen- 
-1  tence,  were  to  continue  two  years  or  more,  ought  to 
have  been  removed  to  the  Eastern  penitentiary,  or  ought  now  to 
be  removed  to  it.  The  City  and  County  jail  is  only  for  those 
convicted  in  the  City  or  County,  and  sentenced  to  confinement  for 
a  period  under  two  years. 

The  prisoner  then  ought  to  be  remanded  to  the  Eastern  peni- 
tentiary. I  need  not  repeat  the  observations  on  the  difference 
between  persons  illegally  restrained  of  liberty,  and  those  legally 
confined  under  the  sentence  of  the  law.  To  the  latter,  if  im- 
properly treated,  or  if  confined,  we  may  grant  some  redress ; 
but  we  cannot  absolutely  discharge  them,  (except  by  reversing 
the  judgment  on  writ  of  error,)  nor  even  can  the  Legislature  dis- 
charge a  person  convicted  and  sentenced  according  to  law,  from 
that  sentence  ;  a  pardon  from  the  Executive  alone  can  do  this. 

Prisoner  remanded. 


1836.]  OF  PENNSYLVANIA.  448 

[PHILADELPHIA,  APRIL  18,  1836.  ] 

The  COMMONWEALTH  against  KING  and  Others. 

A  miller  in  New  Jersey  having  contracted  to  deliver  a  certain  quantity  of 
flour  in  New  York,  sent  it  to  A.  a  carrier  in  Easton  in  Pennsylvania  to 
be  forwarded  to  New  York.  The  Morris  Canal  being  obstructed  by  the 
ice,  a  portion  of  the  flour  was  sent  in  a  canal  boat  by  A.  to  B.  another 
carrier  in  Philadelphia,  to  be  forwarded  by  him  by  way  of  the  Delaware 
and  Raritan  Canal  to  New  York.  On  the  arrival  of  the  boat  at  Phila- 
delphia, the  flour  was  landed  on  the  wharf  of  B.,  and  shortly  afterwards 
put  on  board  another  vessel  belonging  to  B. ;  being  a  packet  boat  plying 
on  the  canal  and  between  the  two  cities.  The  flour  was  in  barrels 
which  did  not  bear  the  mark  or  brand  of  the  state  of  New  Jersey  ;  and 
no  offer  to  submit  the  flour  to  inspection  was  made.  Held,  under  the 
act  of  14th  of  April,  1835.  (1)  that  the  flour  was  liable  to  inspection; 
(2)  that  there  was  a  sufficient  "offer  to  transport"  it  out  of  the  state, 
without  inspection ;  consequently  that  the  inspector  had  a  right  to  seize 
it  as  forfeited  ;  and  that  the  circumstances  of  B.  being  ignorant  of  the 
fact  of  non-inspection  was  not  material. 

THIS  was  an  indictment  against  Francis  King,  Alfred  Hay- 
den,  George  M'Henry  and  John  O'Rourke,  which  had-  been 
found  in  the  Mayor's  Court  for  the  City  of  Philadelphia,  at 
December  Sessions  1835,  and  removed  to  this  Court  by  eertio- 
rari. 

The  indictment  contained  three  counts ; 

*1.  For  a  riotous  assault  upon  one  of  the  deputy-     r*.j.iq-i 
inspectors  of  flour  for  the  city  of  Philadelphia,  while  in     L 
the  lawful  execution  of  his  official  duty. 

2.  For  an  assault  upon  him  while  in  the  lawful  execution  of 
such  duty. 

3.  For  a  common  assault. 

At  the  trial,  which  took  plade  at  a  Court  of  Nisi  Prius  held  at 
Philadelphia  on  the  12th  of  March,  1836,  before  the  Chief  Jus- 
tice, the  following  facts  appeared. 

In  the  month  of  November,  1835,  John  Quick  &.  Son,  millers, 
residing  at  the  town  of  Belvidere  in  the  state  of  New  Jersey,  con- 
tracted with  Messrs.  Nevins  &  Son  of  New  York,  .to  deliver  to 
them  600  barrels  of  flour  in  New  York.  The  flour  was  accord- 
ingly sent  to  Rodenbaugh  &  Co.  carriers  at  Easton  in  Pennsyl- 
vania, branded  for  the  New  York  market  according  to  the  requi- 
sitions of  the  law  of  that  state,  llodenbaugh  &  Co.  sent  61 
barrels  of  this  flour  in  their  boat,  by  the  Delaware  Canal,  to 
Messrs.  C.  &  F.  King  in  Philadelphia,  to  be  forwarded  in  a  line 
of  packets,  which  the  latter  were  engaged  in  running  from  Phila- 
delphia to  New  York  through  the  Delaware  and  Raritan  Canal. 
The  flour  arrived  at  the  wharf  in  Philadelphia  on  the  25th  of 
November,  1835,  when  it  was  placed  on  board  one  of  the  packets 

VOL.  i.— 30 


449  SUPREME  COURT  [March  Term, 

(Commonwealth  v.  King.) 

of  Messrs.  King.  In  the  afternoon  of  that  day  the  deputy  in- 
spector of  flour,  having  received  information  of  the  facts,  pro- 
ceeded to  the  boat  and  requested  them  to  discharge  the  flour  for 
inspection.  He  was  told  that  there  was  none  on  board ;  but  hav- 
ing ascertained  that  the  fact  was  otherwise,  he  placed  two  watch- 
men on  board.  One  of  the  firm  of  Messrs.  King  then  said,  that 
it  should  be  landed  the  next  morning.  On  the  next  day  the  in- 
spector attempted  to  seize  the  flour,  on  the  ground  that  it  was  for- 
feited under  the  inspection  laws.  The  defendant  King  forbade 
him  to  remove  it,  and  ordered  his  laborers  to  roll  the  flour  into 
the  store  of  C.  &  F.  King.  The  assault  then  took  place,  which 
was  the  subject  of  the  indictment. 

The  defence  was,  that  the  flour  was  not  liable  to  inspection ;  and, 
that  if  it  had  been  liable  to  inspection,  it  would  not,  under  the  cir- 
cumstances, have  been  forfeited.  That  this  being  the  case,  the 
inspectors  had  no  right  to  seize  it,  and  were,  therefore,  the  aggres- 
sors ;  and  that  the  law  justified  the  interference  of  Mr.  King  to 
protect  his  servant,  and  justified  the  defendants  in  repelling  force 
by  force  under  the  circumstances. 

The  defendants'  counsel  asked  the  Court  to  charge  the  jury, 
that^- 

"  1.  If  the  flour  in  question  was  in  transitu  from  New  Jersey 
to  New  York,  it  was  not  liable  to  inspection. 

2.  If  the  flour  came  from  the  mill  of  Quick  &  Son  to  Easton 

*n  *executi°n  °f  the  contract  of  7th  November,  1835, 
and  was  at  the  time  in  question  under  carriage  to  New 
York  in  pursuance  of  that  contract,  it  was  not  liable  to  inspec- 
tion. 

3.  If  the  jury  believe  Quick  and  Rodenbaugh,  the  flour  was  in 
transitu,  while  at  Philadelphia. 

4.  The  mere  landing  of  it  on  a  wharf  in  Philadelphia  for  the 
purpose  of  transhipment  in  the  course  of  its  carriage  to  New 
York  aforesaid,  does  not  render  it  liable  to  inspection. 

5.  That  the  removal  of  the  flour  from  one  boat  to  another,  in 
the  transitus  from  New  Jersey  to  New  York,  though  in  the  port 
of  Philadelphia,  does  not  subject  the  flour  to  inspection. 

6.  That  the  inspectors  had  no  right  to  inspect  this  flour,  if  they 
knew  its  origin  to  be  in  New  Jersey,  and  its  immediate  destination 
to  be  New  York. 

7.  That  the  limits  of  the  transit  for  the  above  purposes  are  to 
be  fixed  by  the  two  termini,  which  were  New  Jersey  and  New 
York. 

8.  That  the  law  of  the  case  is  in  these  respects  the  same,  if  the 
termini  were  Easton  and  New  York. 

9.  That  if  there  were  no  right  to  inspect,  there  was  under  the 
circumstances  of  the  case,  no  forfeiture. 


1836.]  OF  PENNSYLVANIA.  450 

(Commonwealth  •».  King.) 

10.  That  there  was  no  forfeiture,  if  the  lading  of  the  Planet 
was  incomplete,  and  the  shipment  or  intended  shipment,  so  far  as 
measures  had  then  been  taken  for  making  it,  was  without  the 
participation  of  any  but  unauthorized  servants,  and  without  the 
knowledge  of  their  employers  at  the  time  of  its  being  discovered 
by  the  officers." 

The  Chief  Justice  charged  the  jury  in  substance  as  follows : — 

"  The  material  questions  are — was  the  flour  subject  to  inspec- 
tion ?  Was  it  forfeited  by  evasion  ?  Were  the  officers  resisted  ? 
To  find  any  one  of  these  for  the  defendants  is  to  acquit  them.. 

1st.  They  contend,  that  the  article  was  in  a  course  of  trans- 
port from  an  adjoining  state  through  the  port  of  Philadelphia  to 
a  market ;  consequently  not  within  the  intent  of  the  inspection 
laws. 

That  if  within  the  intent,  they  (the  laws)  are  to  be  controlled 
by  the  constitution  of  the  United  States. 

Flour  passing  through  a  state,  along  the  common  highway  of 
the  states,  is  not  subject  to  inspection ;  a  vessel  may  pass  from  a 
point  on  the  Delaware  above  the  state  to  a  point  below  it ;  may 
pass  without  being  challenged,  though  anchored  in  the  port  or 
made  fast  to  the  wharf.  But  there  must  be  no  transhipment  to 
a  Philadelphia  vessel,  or  any  vessel  receiving  a  cargo  in  port — 
that  would  break  continuity,  and  make  the  beginning  of  a  new 
voyage.  The  owner  cannot  use  the  port  for  exportation,  and  not 
comply  with  'the  regulations  of  the  port.  Was  this  an  exporta- 
tion by  a  Philadelphia  forwarding  house,  or  was  it  a  continuation 
of  the  voyage  from  New  Jersey  or  from  Easton  ?  Continuity  may 
be  one  thing  for  charging  *carriers  for  loss,  and  another  r^M  c-i  -i 
for  charging  the  article  with  local  regulations.  Flour  L 
is  certainly  within  the  inspection  laws.  The  object  of  these  is  the 
protection  of  our  local  character  in  foreign  markets.  This  is  not 
accomplished  by  permitting  the  article  to  depart  without  brand, 
whether  it  be  of  domestic  or  extra-territorial  origin.  The  foreign 
dealer  knows  nothing  of  acquired  character  from  temporary  situs 
— he  judges  from  the  clearance  of  the  ship.  The  case  was  the 
same  in  principle  as  if  the  shipment  were  to  European  ports.  As 
to  the  constitutionality  of  the  law,  the  right  of  the  states  to  pass 
inspection  laws  has  been  recognized.  These  are  strictly  municipal, 
not  regulations  of  foreign  commerce.  To  regulate  commerce  be- 
tween state  and  state  was  given  to  Congress  to  prevent  oppression, 
by  ruinous  burthens  of  the  commerce  of  a  neighbor.  But  bur- 
thens are  not  ruinous  or  oppressive  when  no  greater  than  those 
imposed  on  the  inhabitants  of  the  same  state.  An  act  in  the 
guise  of  an  inspection  law  might  be  in  substance  a  regulation  to 
burthen  foreign  commerce,  and  then  it  would  be  void.  Such  is 
not  the  character  of  our  inspection  laws. 


451  SUPREME  COURT  [March  Term, 

(Commonwealth  v.  King.) 

2d.  Being  liable  to  inspection,  was  the  flour  forfeited?  Did 
any  one  in  the  words  of  the  law  *  offer  to  transport'  it?  An 
article  may  be  forfeited  by  acts  of  those  who  do  not  own  it.  The 
owner  is  liable  for  all  acts  done  in  the  course  of  the  agency,  to 
which  he  commits  it — his  remedy  is  against  the  agent.  The  fact 
of  the  knowledge  of  Messrs.  King  is  immaterial — they  were  bound 
to  know  every  thing  done  in  the  course  of  their  business.  Was 
the  flour  put  aboard  by  any  one  with  intent  to  ship  it?  The 
commonwealth  has  nothing  to  do  with  the  owner  or  agents,  but 
only,  with  the  article.  Forfeiture  does  not  make  these  criminally 
responsible — the  penalty  is  attached  to  the  article,  and  the  agent 
is  civilly  responsible  for  misconduct.  The  offence  is  complete  by 
the  first  step  taken  towards  unlawful  purpose,  even  by  an  offer  to 
execute. 

3d.  Was  there  a  riot?  Any  unlawful  act  done  with  violence 
by  three  or  more,  is  a  riot.  To  oppose  officers  in  the  execution 
of  their  duty,  is  unlawful.  Were  the  inspectors  in  execution  of 
their  duty  ?  The  statute  dispenses  with  a  warrant  of  seizure — 
such  dispensation  is  not  unconstitutional.  It  is  not  pretended, 
that  the  officers  were  not  opposed — the  flour  was  actually  res- 
cued. Wanton  violence  by  officers,  if  any  could  be  pretended,  is 
not  to  be  set  against  violence  offered  to  them — the  cases  are  separ- 
ately punishable.  These  are  not  the  days  for  presumptions  un- 
favorable to  public  functionaries — the  tendency  of  the  times  is  not 
towards  official  oppression,  but  towards  contempt  of  authority. 
When  the  ministers  of  the  law  are  incompetent  to  execute  it, 
freedom  is  gone,  and  the  weak  are  the  slaves  of  the  strong.  Our 
duty  is  to  sustain  the  officers  while  we  can." 

The  jury  found  the  defendants  guilty. 

F*4ri21         *^  m°ti°n  f°r  a  new  to^al  having  been  made,  the  ques- 
-•     tions  of  law  now  came  on  to  be  argued. 

Mr.  Cadwalader  for  the  defendants. 

The  case  turns  upon  the  true  construction  of  the  act  of  15th 
of  April,  1835,  entitled,  "  An  act  relating  to  inspections,"  by 
which  the  previous  laws  were  consolidated  and  revised. 

1.  Was  this  flour  forfeited,  supposing  it  to  be  within  the  in- 
spection laws  ? 

2.  Was  it  liable  to  inspection  ? 

1st.  The  32d  section  of  the  act  declares,  that  "  if  any  person 
shall  offer  to  transport  any  such  flour  or  meal  out  of  this  state 
without  being  proved  or  branded  in  the  manner  required  by  the 
act,  the  same  shall  be  forfeited  and  sold  by  the  inspectors,"  &c. 
The  43d  section  provides  for  the  entry  in  the  manifest  of  the 
number  of  barrels,  &c.  and  declares,  that  the  inspector  shall  have 
free  access  to  such  manifests.  This  section  shows  when  the  act 


1836.]  OF  PENNSYLVANIA.  452 

(Commonwealth  v.  King.) 

of  exportation  is  complete.  In  a  question  of  this  kind,  the  scien- 
ter  is  of  the  first  importance.  Now  there  is  no  scienter  at  all, 
proved  on  the  part  of  the  principals.  The  knowledge  seems  to 
have  been  confined  to  the  laborers  ;  by  whose  acts  they  could  not 
be  bound.  In  England  the  rule  now  is  to  interpret  the  revenue 
and  navigation  laws  favorably  for  the  subject,  and  to  lean  against 
forfeitures,  if  the  law  is  obscurely  worded.  Hubbard  v.  John- 
son, (3  Taunt.  220,  1.)  So  in  the  United  States  courts.  U. 
States  v.  G-oodin,  (12  Wheat.  477.)  Upon  the  opposite  con- 
struction a  person  transporting  flour  from  Florida  to  Maine,  ought 
to  be  acquainted  with  the  law  of  every  state.  There  is  no  case 
throughout  the  act  of  1835,  which  does  not  suppose  a  criminal  in- 
tent. Unless  knowledge  be  affirmatively  shown  by  the  prosecu- 
tion, a  forfeiture  cannot  take  place.  The  Betty,  (1  Rob.  Adm. 
Rep.  220,  226,  7  ;)  Sturges  v.  Maitland,  (1  Anthon's  N.  P.  R. 
153,  0  ;)  Idle  v.  Vanhecker,  (Bunbury,  230  ;)  Mitchell  v.  Tor- 
rup,  (Parker,  227,  238.)  The  Chief  Justice  charged  the  jury 
as  if  the  offence  consisted  of  an  offer  to  lade,  whereas  the  act 
speaks  of  an  offer  to  transport ;  the  difference  being  material. 
The  Caroline,  (7  Cranch,  496,  501  ;)  Hoodie  v.  The  Alfred,  (3 
Dall.  307  ;)  The  Active,  (7  Cranch,  106  ;)  The  Emily  $  Catha- 
rine, (9  Wheat.  385,  &c.) 

2d.  The  flour  was  not  liable  to  inspection.  The  act  of  1835, 
intended  to  give  greater  facilities  to  the  passage  of  the  produce 
of  other  states,  not  to  throw  obstructions  in  the  way.  The  ques- 
tion is,  was  this  flour  "designed  for  exporation"  from  Philadel- 
phia, and  it  is  plain  from  the  evidence,  that  it  was  not.  It  was 
merely  in  transitu  from  Belvidere  to  New  York.  It  certainly 
had  no  situs  in  Philadelphia,  and  it  follows,  that  it  was  in  tran- 
situ. It  was  in  the  hands  of  a  carrier  at  the  time,  and  would 
not  have  been  brought  to  Philadelphia  at  all,  if  the  ice  had  not 
prevented  the  ordinary  passage  *through  the  Morris  r*icq-i 
Canal.  Belvidere  and  New  York  then  were  the  termini.  L 
Hyde  v.  The  Navigation  Co.  (5  Term  Rep.  397.)  The  carriage 
was  not  divisible.  Could  not  this  flour  have  been  stopped  in 
transitu  in  case  of  the  failure  of  the  consignees,  even  after  it  had 
left  Philadelphia  ?  Story's  Abbott,  374  ;  3  East.  397,  note  ; 
Gibbons  v.  Ogden,  (9  Wheat.  1.)  Under  the  revenue  laws,  Phila- 
delphia would  be  a  starting  place,  which  gives  a  situs  ;  but  it  is 
not  so  under  the  laws  relating  to  the  coasting  trade.  There  is 
nothing  in  a  vessel  of  this  kind  to  indicate,  that  she  came  from 
Philadelphia.  (Acts  of  Congress  of  1793,  1819  and  1822.)  It 
is  surely  not  an  act  of  exportation  to  take  a  wagon  or  boat  at 
Philadelphia  to  go  to  another  state.  There  can  be  no  injury  to 
the  trade  of  this  city  from  the  passage  of  flour  under  circum- 
stances like  the  present.  Pennsylvania  is  not  responsible,  unless 


453  SUPREME  COURT  \_Mu 

(Commonwealth  v.  King.)  Ta.ch  Term 

her  brand  is  upon  it.  It  was  to  be  inspected  in  New  Y 
to  brand  it  with  the  name  of  New  Jersey,  would  be  us« 
could  not  be  within  the  contemplation  of  the  legislate.  e:t(Ork  •  and 
exportation  de  novo  was  what  was  meant  ;  and  the  nifc.^,,3jesg'  ail(j 
at  Philadelphia,  although  there  was  a  reshipment,  could  ?  Actual 
considered.  In  Hancock  v.  Sturyes,  (13  Johns.  Rep.  ^touching 
was  held,  that  flour  situated  like  the  present,  was  not  liab  j0j.  ^e  so 
spection  under  the  laws  of  that  state.  (Laws  of  N.  Yor  ggj  \  ^ 
of  1813.)  In.  the  case  of  The  Apollon,  (9  Wheat.  36?ue  ^  jn_ 
Court  say,  "  the  question  is,  whether  a  mere  transit  throu^  .  j^c^ 
waters  of  the  St.  Mary  for  the  purpose  of  proceeding  '  r>'\  ^e 
Spanish  territory,  is  to  be  deemed  an  arrival  within  the  lir^^h  tne 
the  United  States,  from  a  foreign  port  within  the  sense  of  the  ^  ^ne 
section  of  the  act.  We  are  decidedly  of  opinion,  that  it  Cij^g  Of 


be  so  considered."  -  29th 

3d.  A  grave  constitutional  question  arises,  if  it  can  be  sh<r.innot 
that  the  intent  of  the  act  was  to  subject  this  flour  to  inspect  i 
The  power  to  regulate  commerce  among  the  several  states  is  gi,  ^Wn 
in  express  terms  to  Congress,  (Art.  1,  sect.  viii.  §  3,)  and     :on' 
states  are  expressly  prohibited  from  laying  duties  on  imports    ven 
exports,  except  such  as  are  absolutely  necessary  for  executing  ^e 
inspection  laws.     The  power  of  Congress  to  regulate  commerce1    or 
necessarily   exclusive.     Gribbons  v.    Oyden,   (9  Wheat.   198  *  ^ 
Steam  Boat  Co.  v.  Livinyston,  (3  Cowen,  735  ;)   2   Story",  jg 
Comm.  512  ;  Brown  v.  The  State  of  Maryland,  (12  Whear.\ 
419.)     In  the  last  cited  case,  C.  J.  Marshall  asks,  "If  the  state:  -g 
may  tax  all  persons  and  property  found  on  their  territory,  what  . 
shall  restrain  them  from  taxing  goods  in  their  transit  through  theV^ 
state  from  one  port  to  another  for  the  purpose  of  re-exportation  ?  "  '* 
(12  Wheat.  449.)     The  exception  in  the  constitution  of  inspection 
laws  has  an  obvious  reference  to  duties  on  exports^  not  upon 
articles  which  are  properly  said  to  be  transported  from  one  state 
to  another,  and  so  it  appears  to  have  been  understood  by  C.  J. 
Marshall  in  12  Wheat.  438,  and  in  Gibbons  v.  Oyden,  (9  Wheat. 
203  ;)  2  Story's  Comm.  472,  3.     If  the  article  in  question  could 
constitutionally  be  made  the  subject  of  a  duty  under  *the 
inspection  laws,  so  might  tobacco  if  found  on  board  of  a 
steamboat  passing  up  the  Delaware,  and  touching  at  a  wharf  in 
the  course  of  communication  with  New  York; 

In  the  course  of  the  argument,  various  acts  of  assembly  re- 
lating to  inspections,  passed  previously  to  the  act  of  1835,  were 
cited. 

Mr.  St.  Gr.  Campbell  and  Mr.  Dallas  for  the  Commonwealth. 

1  .  The  right  of  the  state  to  pass  inspection  laws,  is  an  inher- 

ent right.     It  had  been  exercised  long  before  the  adoption  of  the 


1836.]  OF  PENNSYLVANIA.  454 

(Commonwealth  v.  King.) 

constitution,  and  by  that  instrument  is  recognized  as  a  reserved 
right.  Gibbons  v.  Ogden,  (9  Wheat.  203.)  The  constitution 
has  provided  for  exporation  and  importation.  It  has  left  the  sub- 
ject of  transportation  as  it  was,  viz.  within  the  power  of  the  sev- 
eral states.  In  Shuster  v.  Ash,  (11  Serg.  &  R.  90,)  C.  J.  Tilgh- 
man  asserted  this  right,  in  answer  to  a  suggestion  similar  to  that 
which  had  been  made  in  this  case.  The  only  question  under  the 
constitution  is,  whether  the  duty  laid  by  the  state  is  more  than 
what  is  necessary  for  the  execution  of  the  inspection  laws.  In 
this  case  the  duty  is  a  minimum  one,  being  only  one  cent  per 
barrel. 

2.  The  general  rule  laid  down  by  the  act  of  1835,  is,  that  '•'•all 
flour"  designed  for  exportation  is  liable  to  inspection.  The  only 
limit  to  this  comprehensive  language  is  to  be  found  in  the  5th 
section,  which  authorizes  flour  of  other  states,  duly  branded,  to 
pass  without  inspection.  The  rule  is  tne  same  with  respect  to  all 
the  other  articles.  The  Legislature  thought  fit  to  throw  open 
the  canals  for  the  passage  of  flour,  &c.  from  other  states,  with  a 
proviso,  which  it  had  a  right  to  impose,  that  it  should  bear  the 
mark  of  the  state  of  its  origin,  that  it  might  not  be  confounded 
with  our  own  manufacture.  Is  this  case  then  within  the  meaning 
and  intent  of  the  law  ?  The  evidence  shows  that  the  flour  was 
landed  on  the  wharf  at  Philadelphia,  and  afterwards  put  on  board 
of  another  vessel  for  exportation.  This  vessel  was  well  known 
to  come  from  Philadelphia,  and  her  cargo  would  pass  for  Penn- 
sylvania flour,  unless  branded  according  to  law.  The  distinction 
between  exportation  to  another  state  and  to  a  foreign  port,  has 
no  solidity.  It  was  adverted  to  and  denied  by  C.  J.  Tilghman, 
in  Shuster  v.  Ash.  The  act  makes  no  exception  of  flour  in 
transitu,  as  to  the  forfeiture.  The  act  certainly  did  not  intend 
to  require  that  the  inspector  should  wait  until  the  exportation 
had  actually  taken  place,  since  it  would  be  impossible  in  that  case 
to  apply  the  penalty  in  rem.  as  was  obviously  designed.  When 
an  article  is  taken  from  a  wharf  and  put  into  a  boat  destined  for 
another  place,  this  is  certainly  a  sufficient  "  offer  to  transport." 
It  was  immaterial  whether  the  defendants  knew  of  the  facts 
and  design  or  otherwise.  The  rule  is,  that  if  tlje  law  does  not 
require  the  scienter,  it  is  unimportant.  In  Mitchell  v.  Torrup, 
(Parker,  227,)  where  the  violation  of  the  law  was  committed 
by  the  mariners  of  a  vessel  without  the  privity  of  the  master  or 
*  owners,  it  was  held  that  the  vessel  was  nevertheless  r*j£K-i 
forfeited.  Cross  v.  The  United  States,  (Gallison's  Rep.  "- 
28.)  The  case  of  Hancock  v.  Sturges,  does  not  apply,  because 
the  New  York  law  did  not  require  that  the  produce  of  another 
state  should  be  branded  as  such. 


455  SUPREME  COURT  [March  Term, 

(Commonwealth  v.  King.) 

Mr.  D.  P.  Brown,  in  reply. 

The  case  differs  from  all  that  may  be  supposed  to  have  been 
within  the  view  of  the  Legislature,  or  that  have  been  cited  on  the 
other  side.  It  never  was  the  intention  of  the  miller  to  send  this 
flour  to  Philadelphia.  It  was  forced  here  by  stress  of  weather 
on  its  passage  from  New  Jersey  to  New  York.  It  never  was  in 
Philadelphia  in  contemplation  of  law.  The  case  is  like  that  of  a 
slave  brought  from  a  southern  state  by  the  owner  in  transitu. 
The  constitution  never  contemplated  the  application  of  the  in- 
spection laws  to  articles  on  board  of  a  vessel,  which  has  merely 
touched  at  a  wharf  or  transferred  its  lading  to  another  vessel. 
There  is  a  clear  distinction  to  be  found  in  the  act  between  lading 
and  transporting.  The  case  of  Hancock  v.  Sturges,  is  decisive 
and  in  point  in  all  respects.  The  reasoning  of  the  Judge  applies 
with  equal  force  here. 

• 

The  opinion  of  the  Court  was  delivered  by 

HUSTON,  J. — This  case  arises  under  the  inspection  law  of  Penn- 
sylvania, passed  on  the  14th  of  April,  1885,  and  calls  the  atten- 
tion of  this  Court  to  the  construction  of  several  sections  of  the  act. 
§  1.  "All  flour  of  wheat,  flour  of  rye,  and  meal  made  of  Indian 
corn,  shall,  if  designed  for  exportation  from  either  of  the  places 
mentioned  in  this  section,  be  liable  to  be  inspected  at  the  respect- 
ive places  as  follows: — 1.  At  the  city  of  Philadelphia,  by  the  in- 
spector of  flour  appointed  for  the  said  city,"  &c.;  and  then  pro- 
ceeds to  name  other  places  not  material  in  this  case. 

§  5.  "Provided,  That  flour  and  meal  manufactured  in  any  other 
state,  and  put  up  in  casks  which  shall  bear  the  brand  or  name  of 
such  state,  may  be  exported  from  this  Commonwealth,  as  the  man- 
ufacture of  the  state  from  which  it  shall  come,  and  not  as  the 
flour  or  meal  of  Pennsylvania,  without  being  liable  to  inspection 
as  aforesaid." 

As  one  great  reliance  of  the  defendants  was  on  the  construction 
of  these  two  sections,  I  shall  notice  their  arguments.  We  heard 
it  contended  that  these  sections  had  no  application  to  flour  not  in- 
tended for  trade  with  nations  foreign  to  the  United  States  ;  that  if 
the  flour  or  meal  was  destined  to  be  carried  to  another  state  of  the 
Union,  it  was  not  within  the  law ;  nor,  as  was  slightly  argued, 
within  the  power  of  our  Legislature ;  and  we  had  the  situs  and 
transitua  distinguished. 

The  other  states  of  the  Union,  though  to  a  certain  extent, 
r*4fifi1  fonmng  *together  with  this  state  one  government,  are 
-•  nevertheless  for  other  purposes  considered  foreign  states. 
This  has  been  so  often  said  and  decided,  that  it  would  not  seem 
necessary  to  do  any  thing  more  than  assert  it.  That  the  carry- 
ing from  Philadelphia  to  a  port  in  another  state,  is  exportation 


1836.]  OF  PENNSYLVANIA.  456 

(Commonwealth  v.  King.) 

within  our  inspection  laws,  has  been  decided  by  this  Court  in 
Shuster  v.  Ash,  (11  S.  &  R.  90.)  Flour  is  among  the  staple 
commodities  of  Pennsylvania ;  almost  the  whole  of  our  flour  is 
exported  to  and  consumed  in  other  states  of  the  Union,  and  if 
inspection  laws  are  proper  and  even  necessary,  (and  I  shall 
assume  that  they  are,)  no  one  article  can  be  named  to  which  they 
have  been  more  generally  applied,  or  to  the  goodness  of  which 
they  are  more  essential. 

By  our  law,  flour  may  be  carried  out  of  this  state,  from  any 
other  place  than  those  designated  in  the  act,  without  inspection 
and  without  regard  to  whether  manufactured  in  this  state  or 
elsewhere  ;  but  if  it  is  at  Philadelphia,  and  start  from  that  port, 
whether  to  another  state,  or  the  West  Indies,  or  Europe,  it  must 
be  inspected.  The  papers  of  the  ship  or  vessel,  must,  by  the  43d 
section  of  the  act  in  question,  (and  do  by  all  mercantile  usage) 
show  that  the  flour  was  laden  at  Philadelphia  ;  and  it  will,  at  its 
place  of  delivery,  be  exhibited  as  Pennsylvania  flour,  unless  in 
accordance  to  the  5th  section  it  is  branded  or  marked  as  the  pro- 
duce of  another  state.  The  inspection  is  to  secure  the  quality 
of  flour  shipped  at  the  port  of  Philadelphia.  The  mark  of  that 
inspection  gives  a  character  to  the  flour,  wherever  it  is  offered  for 
sale ;  that,  and  the  ship's  papers,  show  it  came  from  Philadel- 
phia ;  there  is  nothing  in  the  foreign  port  to  show  when  it  came 
to  Philadelphia,  or  from  whence  it  came,  (unless  it  has  the  brand 
or  mark  of  some  other  state ;)  and  if  all  unskilful  or  dishonest 
men,  who  had  badly  ground  flour,  or  flour  mixed  with  rye  or 
corn  meal,  could  take  it  to  Philadelphia  and  export  it  without 
examination,  and  the  papers  of  the  vessel  only  show  that  it  Avas 
laden  at  Philadelphia,  such  unskilful  and  dishonest  men,  might, 
for  a  time  make  great  gain,  but  to  the  discredit  of  all  Philadel- 
phia flour,  and  the  loss  of  all  skilful  and  fair  manufacturers  and 
exporters  of  flour.  It  is  not  only  necessary  then,  but  absolutely 
necessary  to  the  effect  and  utility  of  our  inspection  laws,  that  all 
flour  brought  to  Philadelphia,  to  be  from  thence  exported,  and 
which,  at  its  place  of  destination,  must  and  will  show  that  it  came 
from  Philadelphia,  should  be  subject  to  inspection  there,  unless, 
according  to  the  5th  section,  it  is  so  branded  or  marked,  that  it 
cannot  be  offered  for  sale  as  Philadelphia  flour.  It  is  no  hard- 
ship on  those  of  other  states,  that  they  shall  either  show  by  brand 
or  mark,  where  their  flour  was  made,  or  if  they  will  lade  it  for 
exportation  at  Philadelphia,  without  such  brand  or  mark,  submit 
to  inspection  according  to  our  laws.  All  manufacturers  or  ex- 
porters of  flour  from  other  states,  who  intend  to  ship  from  Phila- 
delphia, may  do  so  without  its  being  subject  to  our  inspection 
laws  ;  but  then  it  will  not  go  into  market  as  Pennsylvania  flour. 
If  *they  do  not  brand  or  mark  the  name  of  the  state 
where  it  was  manufactured,  and  it  is  exported  from 


457  SUPREME  COURT  [March  Term, 

(Commonwealth  c.  King;) 

Philadelphia,  it  will  reach  its  destination  as  Pennsylvania  flour, 
and  by  our  laws  must  be  subject  to  inspection  before  it  is  ex- 
ported ;  and  it  is  not  made  material  by  the  law,  and  cannot  be 
material  in  the  spirit  of  the  law,  whether  it  lay  in  Philadelphia 
an  hour  or  a  month  ;  if  long  enough  to  be  shipped  from  that  port, 
it  must  be  subject  to  our  inspection  laws. 

Another  question  in  this  case,  is — was  the  flour  liable  to  seizure 
as  forfeited  under  our  inspection  laws  ? 

Before  we  proceed  to  the  section  creating  the  forfeiture,  it  may 
be  proper  to  notice  some  things  alleged  in  the  argument.  It  was 
suggested,  that  all  crime  consists  in  intention  ;  that  it  would  be 
severe  to  deprive  the  owner,  who  was  at  a  distance,  of  his  flour, 
for  the  fault  of  ignorant  men,  who  did  the  unlawful  act.  That 
many  acts  derive  their  criminality  from  bad  intention,  is  true ; 
some  acts,  however,  are  highly  criminal,  where  no  bad  intention, 
but  gross  carelessness,  and  disregard  to  the  safety  of  others,  or 
the  enactments  of  the  law  exist ;  but  there  is  a  class  of  offences 
created  by  positive  law,  where  acts  which  in  themselves  would  be 
innocent  are  positively  prohibited,  from  motives  of  general  benefit 
to  the  community,  or  a  large  portion  of  it ;  or  certain  things  are 
enjoined  to  be  done  for  the  general  advantage,  though  to  the  loss 
of  the  person  obliged  by  the  law  to  do  those  things ;  and  to  do, 
or  not  to  do  those  acts,  is  the  subject  of  punishment  by  the  law. 
All  inspection  laws,  and  all  laws  imposing  duties,  are  of  these 
classes ;  and  under  these  laws  the  penalty  is  generally,  if  not 
universally  incurred,  by  doing  the  act  prohibited,  or  not  doing 
the  act  enjoined  ;  and  the  cases  cited,  seemed  to  prove  this,  even 
where  not  only  the  goods  of  the  individual  transgressing,  but  the 
ship  and  cargo  were  forfeited,  though  belonging  to  persons  who 
intended  no  wrong  and  had  been  guilty  of  nothing,  except  negli- 
gence, and  that  not  personal,  but  negligence  of  the  officers  of  the 
vessel.  No  case  was  cited  where  ignorance  of  the  law  was  sug- 
gested as  a  defence  of  the  individual,  who  actually  contravened 
its  provisions. 

In  cases  under  the  act  in  question,  the  manufacturer  or  owner, 
or  the  owner  of  a  warehouse  or  vessel,  seldom  personally  assists 
in  carrying,  unloading  or  lading  flour  into  a  vessel ;  and  if  it 
were  admitted  as  an  excuse,  that  the  unlawful  act  was  done  by 
their  hirelings,  whether  white  or  black,  we  might  as  well  repeal 
the  whole  act  at  once.  The  principal  persons  would  never  be 
present  when  it  was  intended  to  violate  its  provisions. 

It  was  also  contended,  that  if  there  was  a  violation  of  the  law, 
it  was  of  the  31st  and  not  of  the  32d  section. 

§  31.  Provides  that  "  No  person  shall  lade  or  ship  for  trans- 
portation out  of  this  state,  any  flour  or  meal  liable  to  be  in- 
spected, previously  to  exportation,  as  aforesaid,  before  he  shall 


1836.]  OF  PENNSYLVANIA.  457 

(Commonwealth  •».  King.) 

offer  the  same  to  the  view  and  examination  of  the  inspector  of 
flour  of  the  port  or  place  where  the  same  shall  be  laden  or  in- 
tended to  be  laden,  or  before  the  *same  shall  be  inspected  r*4.=;Q-| 
and  approved  according  to  law,  under  the  penalty  of  "- 
seventy-five  cents  for  every  cask,  one  half  to  the  use  of  the 
person  who  shall  give  information  thereof  to  the  inspector  or  any 
of  his  deputies,  and  the  other  half  to  the  use  of  the  inspector  or 
his  deputy. 

And  by  §  32,  "  If  any  person  shall  offer  to  transport  any  such 
flour  or  meal  out  of  the  state,  without  being  proved  or  branded 
in  the  manner  required  by  this  act,  the  same  shall  be  forfeited, 
and  the  same  shall,  be  sold  by  the  inspector,  and  the  proceeds 
thereof  paid  into  the  treasury  of  the  Commonwealth."  Certainly 
these  sections  are  different :  may  act  on  different  persons,  are  fol- 
lowed by  different'  penalties  ;  and  the  forfeitures  go  in  different 
directions.*  The  31st  section  is  personal  to  the  master  or  person 
who  lades  the  flour  on  board  his  vessel,  and  imposes  a  pecuniary 
fine  on  him  for  the  unlawful  act ;  which  fine  goes  to  the  informer 
and  inspector.  The  master  may  or  may  not  be  owner  of  the 
flour  ;  the  32d  section  forfeits  the  flour,  and  affects  the  owner  of 
the  flour,  and  it  is  to  be  sold  and  the  proceeds  go  to  the  state  ; 
both  sections  may  be  violated  as  to  the  same  flour  ;  and  the  75 
cents  per  barrel  may  be  recovered  from  the  person  who  lades  flour 
not  inspected,  and  the  owner  may  forfeit  the  same  flour,  if  he  by 
himself  or  his  agents  offers  to  transport  it  out  of  the  state. 

The  expression  "offer  to  transport  out  of  this  state"  has 
been  commented  on  as  meaning  the  same  as  "  shall  transport  out 
of  this  state,"  or  at  least  shall  set  sail  from  the  mooring,  or  if 
not  meaning  the  same,  as  being  of  doubtful  meaning  ;  and  then 
we  are  told  that  this  act  is  to  be  construed  by  some  rule,  which 
will  let  all  offenders  against  it  escape.  I  have  long  disliked  ex 
ceedingly,  the  phrases  "to  be  construed  strictly" — "to  be  con- 
strued favorably,"  and  such  like.  If  it  is  said  the  courts  ought 
not  to  include  in  the  list  of  crimes,  acts  not  mentioned  in  the 
statute,  although  they  may  be  thought  of  a  similar  grade,  or 
more  mischievous  to  the  community,  I  can  understand  this  and 
agree  to  it ;  but  I  can't  agree  to  any  doctrine  which  authorizes  a 
court  to  nullify  a  section  of  a  law  plainly  expressed  in  words  un- 
derstood by  every  one.  Nor  can  I  agree  to  put  a  construction 
on  a  law,  which  will  admit  its  obligation,  but  prevent  its  execu- 
tion, or  destroy  all  benefit  intended  to  be  produced  by  it.  The 
officers  of  the  revenue  of  the  United  States  have  their  barges 

*  Let  it  be  understood,  that  I  do  not  mean  to  lay  down  all  the  law  as  to 
the  construction  of  the  31st  section,  nor  designate  the  circumstances  which 
may  call  for  its  operation  ;  that  has  not  been  discussed  :  I  merely  mean  to 
show  that  it  does  not  apply  to  this  case. 


458  SUPREME  COURT  [March  Term, 

(Commonwealth  t>.  King.) 

and  rowers  and  marines,  and  can  pursue  and  bring  back  an  offen- 
der against  their  laws.  Our  inspector  of  flour  has  no  such  aid  or 
assistants  ;  and  if  the  offence  is  not  complete  until  the  vessel  has 
sailed,  the  offender  escapes.  The  framers  of  this  law  and  the 
Legislature,  knew  this,  and  by  the  provisions  of  this  act  the 
offence  consists  in,  and  the  penalty  is  imposed  not  on  the  actually 
transporting  the  flour,  but  on  "  the  offer  to  transport  it  out  of  this 
State." 

*It  would  not  be  safe  to  attempt  laying  down  rules, 
Avhich,  in  all  cases,  would  decide  what  was  or  was  not  an 
offer  to  transport  out  of  this  state  ;  but,  in  a  case  like  this,  where 
all  those  connected  with  the  transportation  were  at  the  place — 
where  no  one  was  expected  to  arrive,  who  would  examine  what 
had  been  done,  and  correct  any  irregularity — where  the  owners 
and  managers  of  the  warehouse  and  the  vessel,  put  flour  not  in- 
spected on  board,  stowed  it  away,  and  stowed  on  the  top  of  it 
other  articles — made  out  the  papers  for  the  vessel,  specifying  the 
flour  and  the  quantity,  knowing  it  had  not  been  inspected,  or  re- 
gardless whether  it  had  or  not — where  the  discovery  to  the  offi- 
cers of  inspection  was  not  made  by  those  transporting — if  this  is 
not  an  offer  to  transport  out  of  this  state,  then  the  section  is  and 
must  be  inoperative. 

Some  cases  have  been  cited,  which  I  proceed  to  notice.  Han- 
cock v.  Sturyess,  (13  Johns.  331,)  differs  from  this  case  in  most 
particulars.  I  shall  mention  two  :  the  act  of  New  York  is  essen- 
tially different  from  that  of  this  state  ;  and  that  flour  had  been 
inspected  and  branded  at  Baltimore,  and  never  could  be  sold  as 
New  York  manufacture.  If  in  this  case  the  flour  had  carried  the 
brand  of  another  state,  it  is  not  pretended  that  it  would  have  been 
forfeited. 

The  cases  cited  from  7  Cranch,  496,  and  9  Wheaton,  385,  prove, 
first,  that  where  the  penalty  or  forfeiture  is  consequent  on  an  act 
completed,  the  penalty  or  forfeiture  does  not  arise  on  the  offer  to 
do  the  act ;  and  further  that  if  the  penalty  or  forfeiture  arise  on 
the  offer,  they  are  incurred  by  the  offer  to  do  the  act.  The 
words  and  plain  meaning  of  the  law  must  decide  when  the  act  be- 
comes a  violation  of  it. 


rice,  or  any  article  of  a  class  not  produced  in  this  state.  Flour 
is  an  article  which  has  been,  is,  and  will  be  a  staple  article  of 
production  in  this  state,  and  of  export  from  this  state.  I  do  not 
know  of  any  decision  or  dii-tum,  which  would  forbid  this  state  to 
enact,  that  all  flour  manufactured  in  the  state,  should  be  inspected 
previous  to  exportation  ;  and  that  all  flour  intended  to  be  ex- 


1836.]  OF  PENNSYLVANIA.  459 

(Commonwealth  v.  King.) 

ported  from  Philadelphia,  shall  be  also  subject  to  inspection,  un- 
less it  is  branded  or  marked  as  the  produce  and  manufacture  of 
some  other  state — whether  it  is  destined  for  another  state  or  for 
Europe,  makes  no  difference.  If  such  were  not  the  case,  corn  or 
rye,  or  buckwheat,  or  dust  and  bran,  might  be  branded  as  super- 
fine flour,  and  sent  abroad  under  a  Philadelphia  manifest  or  bill  of 
lading  as  Philadelphia  flour. 

The  duties  of  the  inspector  are  important ;  and  not  the  least  so 
is  the  duty  of  seeing  that  the  laws  under  which  he  acts  are  not 
evaded :  to  permit  their  violation  and  not  to  attempt  to  enforce 
them,  would  be  a  dereliction  of  duty  and  violation  of  his  oath. 
To  oppose  or  molest  him  in  the  due  and  lawful  exercise  of  his 
powers,  or  execution  *of  his  duties,  is,  by  the  197th  sec-  r*4.«Ai 
tion  of  the  law  made  a  misdemeanor,  punishable  by  fine  L 
not  exceeding  500  dollars  ;  or  imprisonment  not  exceeding  one 
year,  or  both,  at  the  discretion  of  the  Court. 


After  the  foregoing  opinion  had  been  pronounced,  the  counsel 
for  the  defendants  laid  before  the  Court  a  copy  of  an  act  of  As- 
sembly, passed  on  the  31st  of  March,  1836,  (but  which  had  not 
before  come  to  their  knowledge,)  entitled  "  a  supplement  to  an  act 
entitled  '  An  act  relating  to  inspections,'  approved  the  15th  of 
April,  1835,"  the  material  passages  of  which  are  as  follows: 

"  Section  2.  Nothing  in  the  act,  to  which  this  is  a  supplement, 
shall  be  so  construed  as  to  require  the  inspection,  proving  or 
branding  of  flour  or  meal  of  any  kind,  shipped  or  laden  on  the 
waters  of  the  Susquehanna  and  Delaware  and  their  branches, 
and  intended  to  be  transported  by  the  waters  of  said  rivers,  to  a 
market  out  of  this  state,  but  within  the  limits  of  the  linked 
States. 

Section  3.  So  much  of  the  8th  section,  so  much  of  the  26th 
section,  and  so  much  of  the  31st  and  32d  sections,  and  so  much  of 
the  157th  section  of  the  act,  to  which  this  is  a  supplement,  as  is 
hereby  altered,  and  all  other  acts  and  parts  of  acts  relating  to  in- 
spections, except  this  act  and  the  act  to  which  this  is  a  supplement, 
be  and  the  same  are  hereby  repealed. 

Section  4.  The  true  intent  and  meaning  of  the  various  sections 
of  the  act,  to  which  this  is  a  supplement,  relating  to  foreign  pro- 
duce imported  into  this  state,  and  thence  exported,  are  declared 
to  be,  that  no  produce  imported  into  this  state  from  any  other 
state  or  country,  shall  be  liable  to  inspection  prior  to  exportation 
from  this  state,  if  marked  or  branded  with  the  name  of  the  state 
or  country  whence  it  was  originally  exported,  though  the  mark 
or  brand  may  have  been  affixed  thereto,  after  its  importation 
within  this  state  :  Provided,  that  nothing  herein  contained,  shall 
be  construed  to  repeal  any  of  the  provisions  of  the  said  act,  im- 
posing penalties  for  the  false  marking  or  branding,  or  exporting 


4GO  SUPREME  COURT.  [March  Tern, 

(The  Case  of  the  Philadelphia  Savings  Institution.) 
produce  raised  or  manufactured  within  the  state,  without  inspec- 
tion :  and  Provided  further,  that  nothing  herein  contained,  shall 
be  80  construed  as  to  prevent  the  inspection  of  foreign  produce, 
when  it  is  desired  by  the  purchaser  or  exporter." 

Mr.  Cadwalader,  for  the  defendants,  now  suggested,  that  the 
second  section  of  this  act  clearly  provided  for  the  case  which  was 
the  subject  of  this  indictment,  and  that  the  repeal  of  the  31st  and 
32d  section  of  the  act  of  1835,  put  an  end  to  the  prosecution.  He 
cited  the  case  of  The  Commonwealth  v.  I)uane,  (1  Binn.  601.) 


PER  CURIAM. — We  think  that  the  act  of  Assembly  applies  di- 

F*4n  1     rectty  *to  this  case  '  a 
J      Commonwealth  v.  I)ua 

cannot  proceed  to  give  judgment. 


m 

if          rectly  *to  this  case  ;  and  upon  the  authority  of  The 
Commonwealth  v.  Duane,  we  are  of  opinion  that  we 


Judgment  arrested. 


•e 


Cited  by  Counsel,  4  Wharton,  218  ;  4  Watts  &  Sergeant,  402 ;  1  Barr, 
221  ;  6  Casey,  157. 

Cited  by  the  Court,  7  Wright,  396. 
See  8  Watts,  518  ;  10  Id.  351. 


[PHILADELPHIA,  APRIL  28,  1836.  ] 

The  Case  of  the  PHILADELPHIA  SAVINGS  -INSTI- 
TUTION. 

An  act  of  Assembly  incorporating  certain  persons  by  name,  and  all  others 
thereafter  Incoming  members,  the  object  of  which  incorporation  was  de- 
clared to  l>e  to  receive  from  time  to  time,  deposits  of  money,  and  to  pay 
the  depositors  such  interest,  as  might  from  time  to  time  be  agreed  upon 
by  the  directors,  enacted,  that  for  the  security  of  the  depositors  a  cer- 
tain capital  should  be  raised,  to  be  divided  into  shares,  which  should  be 
transferable,  &c.  The  act  then  proceeded  to  provide  for  annual  meet- 
ings of  the  meml>ers,  and  for  the  election  of  directors  from  among  the 
members ;  gave  to  the  directors  power  to  provide  for  the  admission  of 
memliers,  and  made  it  their  duty  to  appoint  from  among  the- members, 
five  persons  as  a  committee  of  examination,  and  also  to  make  a  dividend 
of  profits  and  .to  pay  the  same  over  to  the  stockholders,  or  their  legal 
representatives  :  Held, 

1.  That  stockholders  were  not,  as  such,  members  of  the  corporation  ; 

consequently  that  the  assignee  of  a  stockholder  did  not  by  the  as- 
signment Income  a  member. 

2.  That  persons  originally  members,  continued  to  be  such,  although 

they  never  possessed  stock  or  had  parted  with  it. 

AT  the  last  term,  an  application  was  made  by  Mr.  Norris  for 
a  rule  to  show  cause  why  an  information  in  the  nature  of  a  writ 
of  quo  warranto  should  not  be  filed,  to  inquire  by  what  authority 


1836.]  OF  PENNSYLVANIA.  461 

(The  Case  of  the  Philadelphia  Savings  Institution.) 
Joseph  Feinour  and  others  exercised  the  rights  of  members  of  the 
Philadelphia  Savings  Institution. 

At  the  same  time  a  rule  was  granted  upon  the  President  and 
Directors  of  the  same  Institution,  to  show  cause  why  'a  manda- 
mus should  not  issue,  requiring  them  to  admit  William  C.  Bridges 
to  participate  in  the  transactions  of  the  said  Institution,  at  its 
meetings  of  business. 

Upon  the  return  of  these  rules,  the  following  appeared  to  be 
the  material  circumstances : 

The  Philadelphia  Savings  Institution  was  incorporated  by  an 
act  *of  the  Legislature  of  Pennsylvania,  passed  on  the 
5th  day  of  April,  1834.  . 

The  first  section  declared  that  certain  persons  therein  named, 
(forty-six  in  number,)  "  and  all  and  every  other  person  or 
persons,  hereafter  becoming  members  of  the  Philadelphia  Savings 
Institution,  in  the  manner  hereinafter  mentioned,''  should  be 
created  and  made  a  corporation  and  body  politic,  with  the  usual 
powers  and  capacities. 

The  2d,  3d,  and  4th  sections,  were  as  follows : 

"  Section  2.  The  object  of  this  corporation  shall  be  to  re- 
ceive from  time  to  time,  and  at  all  times,  from  all  persons  dis- 
posed to  entrust  them  therewith,  such  funds  as  may  be  deposited 
with  them,  and  for  which  they  shall  pay  to  the  depositor  such 
rates  of  interest  as  may  be  from  time  to  time  agreed  upon  by  the 
Directors  of  the  said  Institution.  Provided,  That  the  said  rates 
of  interest  shall  not  be  reduced  without  giving. at  least  sixty  days' 
notice  of  their  intention  so  to  do,  in  two  or  more  of  the  daily 
papers  of  the  city  of  Philadelphia. 

Section  3.  For  the  security  of  the  depositors  of  the  said 
Institution,  it  shall  be  the  duty  of  the  persons  named  in  the  first 
section,  and  of  their  associates,  to  raise  and  form  a  capital  for 
the  said  Institution,  of  not  less  than  fifty  thousand  dollars,  nor 
more  than  $200,000,  in  shares  of  $25  each ;  which  capital  shall 
be  at  all  times  liable  to  the  depositors  for  the  amount  of  their 
deposites  and  of  the  interest  accruing  thereon.  The  said  shares 
shall  be  transferable  on  the  books  of  the  company  in  such  man- 
ner as  may  be  designated  by  the  By-Laws  of  the  said  Institu- 
tion. 

Section  4.  There  shall  be  a  meeting  of  the  members  of  the 
said  Philadelphia  Savings  Institution,  on  such  day  in  the  month 
of  May  next,  and  at  such  place  as  the  five  persons  first  named 
in  this  act,  or  any  three  of  them  shall  appoint,  and  give  at  least 
ten  days'  notice  of  such  meeting  in  two  or  more  newspapers 
printed  in  the  city  of  Philadelphia,  and  oh  such  day  in  the  month 
of  May,  and  at  such  place  annually  thereafter  as  the  By-Laws 
of  said  Institution  shall  provide,  for  the  purpose  of  choosing 


462  SUPREME  COURT  [March  Term, 

(The  Case  of  the  Philadelphia  Savings  Institution.) 
from  amony  the  members,  thirteen  Directors  to  manage  the 
affaire  of  the1  said  Institution  for  twelve  months  thereafter,  and 
until  a  new  election  shall  take  place — and  the  five  persons  first 
named  shall  he  judges  of  the  firsj;  election  of  directors,  and  the 
judges  of  all  future  elections  shall  be  appointed;  and  notice  of 
such  elections  given  in  such  manner  as  the  By-Laws  shall  pro- 
vide." 

The  5th  section  declared  the  duties  and  powers  of  the  direc- 
tors ;  among  which  it  was  provided,  that  they  should  have  power 
"  to  provide  for  the  admission  of  members,  and  furnishing  proofs 
of  such  admissions,"  and  to  pass  all  such  By-Laws  as  should  be 
r+Apo-t  necessary  to  *the  exercise  of  their  powers  and  of  the 
J  other  powers  vested  in  the  corporation  by  the  charter : 
"  Provided,  that  all  such  By-Laws  as  shall  be  made  by  the  di- 
rectors, may  be  altered  or  repealed  by  two-thirds  of  the  members, 
at  any  annual  meeting,  or  at  any  general  meeting,  culled  in  pur- 
suance of  any  By-Law  made  for  that  purpose ;  and  the  majority 
of  members  may  at  any  annual  or  general  meeting,  pass  by-laws 
which  shall  be  binding  upon  the  directors." 

The  Cth  section  authorized  the  corporation  to  invest  its  funds  in 
public  stocks  of  the  State,  or  of  the  United  States,  or  in  real  se- 
curities, or  in  the  discount  of  notes,  and  personal  securities :  pro- 
vided that  the  rate  of  discount  should  not  exceed  one  half  per 
cent  for  30  days. 

The  7th  section  was  as  follows : 

"  Section  7.  It  shall  be  the  duty  of  the  directors,  at  least  once 
in  every  six  months,  to  appoint,  from  the  members  of  the  said  cor- 
poration, five  competent  persons  as  a  committee  of  examination, 
whose  duty  it  shall  be  to  investigate  the  affairs  of  the  said  corpor- 
ation, and  to  make  and  publish  a  report  thereof  in  one  or  more 
newspapers  printed  in  the  city  of  Philadelphia — and  it  shall  also 
be  the  duty  of  the  directors,  on  the  first  Monday  of  January  and 
July,  in  each  and  every  year,  to  make  and  declare  a  dividend  of 
the  interest  and  profits  of  the  said  corporation,  after  paying  its 
expenses,  and  the  same  to  pay  over  to  the  stockholders  or  their 
legal  representatives,  within  ten  days  thereafter." 

The  8th  section  provided,  that  nothing  in  the  act  contained 
should  be  so  construed  as  to  give  or  extend  any  banking  privi- 
leges to  the  institution,  or  to  give  or  allow  any  compensation  to 
the  directors  thereof. 

Shortly  after  the  act  of  incorporation,  the  directors  adopted 
certain  by-laws,  among  which  were  the  following  : 

"  Law  4.  Any  member  of  the  Institution  may,  by  writing  ad- 
dressed to  the  treasurer,  resign  and  relinquish  his  place  and  right 
as  a  member  of  the  Institution  ;  and  every  member  who  shall 
cease  to  be  a  stockholder,  shall  at  the  same  time  cease  to  be  a 
member. 


1836.]  OF  PENNSYLVANIA.  463 

(The  Case  of  the  Philadelphia  Savings  Institution.) 

"  Law  5.  No  person  shall  be  eligible  as  a  member,  unless  he 
shall  have  been  a  depositor  one  year,  or  a  stockholder  six  months. 
All  elections  for  membership  shall  be  by  ballot  at  a  general  meet- 
ing of  the  institution,  at  which  the  votes  of  two-thirds  of  the 
whole  number  of  members  of  the  institution  shall  be  requisite  for 
admission." 

At  a  general  meeting  held  on  the  5th  of  January,  1836,  the 
old  by-laws  were  repealed  by  the  members,  and  in  lieu  of  the 
above  laws,  viz.  law  4th  and  5th  they  passed  the  following  by- 
laws: 

"Law  3,  section  3.  The  number  of  members  of  the  institution 
shall  be  limited  to  fifty  ;  and  in  case  of  vacancy  by  death,  resig- 
nation *or  otherwise,  it  shall  be  the  duty  of  the  presi-  r*4£4i 
dent  immediately  to  call  a  general  meeting  of  the  insti-  "- 
tution  to  supply  such  vacancy,  and  at  any  election  of  member  a 
majority  of  the  whole  number  of  members  shall  be  present ;  and 
the  person  or  persons  balloted  for,  shall  have  received  the  votes  of 
at  least  two-thirds  of  the  members  present. 

Provided,  that  no  person  shall  be  elected  a  member  who  shall 
not  have  been  nominated  at  some  meeting  previous  to  that,  at 
which  he  shall  be  ballotted  for. 

Section  4.  Any  member  of  the  institution  may,  by  writing  ad- 
dressed to  the  president,  resign  and  relinquish  his  place  and  right 
as  a  member  of  the  institution,  at  any  general  meeting  of  the 
members." 

The  law  No.  5  above  quoted  was  repealed. 

The  board  of  Directors  afterwards,  viz.  on  the  14th  of  Janu- 
ary, 1836,  passed  the  following  by-law,  being  a  repeal  of  and  in 
substitution  of  by-law  4  above : 

"  Law  4.  Any  member  of  the  institution  may  by  writing  ad- 
dressed to  the  president,  resign  and  relinquish  his  place  and  right 
as  a  member  of  the  institution  at  any  general  meeting  of  the 
members." 

The  questions  submitted  to  the  Court  were, 

1.  Whether  persons  originally  members,  who  had  transferred 
their  stock  and  no  longer  possessed  any  interest  in  the  stock,  con- 
tinued to  be  members,  with  the  right  of  voting  for  directors,  &c. 

2.  Whether  a  person  to  whom  stock  in  the  institution  was  as- 
signed— as  upon  purchase — became  a  member,  ipso  facto,  without 
admission  by  the  directors. 

Mr.  James  S.  Smith  and  Mr.  Sergeant  contended,  that  none 
but  persons  having  a  pecuniary  interest  in  the  corporation  by 
holding  stock,  were  to  be  considered  as  members.  The  rule  is, 
that  in  monied  institutions  an  interest  in  the  stock  is  essential  to 
membership.  This  rule  is  founded  in  good  sense,  which  leads 
VOL.  i. — 31 


464  SUPREME  COURT 

(Case  of  the  Philadelphia  Savings  Institution.) 

men  to  trust  the  care  of  their  property  to  persons  having  a  com- 
mon interest  with  themselves.  In  the  case  of  literary,  charitable 
or  religious  institutions  a  general  interest  is  sufficient.  Where 
the  corporation  is  of  a  mixed  character,  the  principles  as  to  mon- 
ied  institutions  ought  to  govern :  since  the  control  of  the  stock 
ought  not  to  be  in  the  hands  of  persons  having  no  interest  in  it. 
Such  are  the  turnpike  and  bridge  companies  and  others,  in  which 
there  is  a  view  to  the  public  good  and  private  advantage.  These 
principles  will  be  found  in  the  text-writers  and  adjudications. 
Angel  &  Ames  on  Corporations,  62,  77,  238,  240;  Gray  v. 
Portland  Bank,  (3  Mass.  Rep.  364 ;)  State,  v  Tudor,  (5  Day's 
Rep.  333  ;)  Bond  v.  Appleton,  (8  Mass.  Re1?.  472.)  What 
then  is  the  character  of  this'  corporation  ?  It  is  obvious,  that 
*^  ls  no*'  a  chkNtable  institution  merely.  It  differs  from 
the  saving  banks  of  England,  and  the  saving  fund  socie- 
ties established  here,  in  the  essential  feature  of  possessing  a  joint- 
stock  fund  created  by  the  subscriptions  of  members  not  deposi- 
tors, and  upon  which  a  dividend  is  annually  made.  The  object 
of  those  societies  is  to  take  care  of  the  money  of  depositors,  and 
to  pay  them  the  highest  rate  of  interest  that  can  be  made,  after 
deducting  expenses.  They  are  not  allowed  to  discount  notes ; 
and  their  investments  being  upon  real  estate  or  public  stocks, 
they  require  no  collateral  capital  stock  as  security.  The  savings 
institutions,  on  the  contrary,  look  to  the  interests  of  the  stock- 
holders, and  endeavor  to  give  as  much  profit  as  possible  to  the 
latter.  Whenever  a  capital  is  made  up  by  contributions,  and  is 
to  return  a  profit  it  is  a  joint  stock,  no  matter  what  the  public 
object  may  be.  There  are  many  passages  of  this  charter,  which 
seem  to  imply,  that  the  legislature  meant  stockholders  only  when 
"  members"  are  spoken  of,  and  if  there  are  others,  which  seem  to 
import  a  contrary  intention,  the  principles  stated  with  reference 
to  joint-stock  companies,  ought  to  have  weight  in  deciding  between 
them. 

Mr.  W.  M.  Meredith  and  Mr.  Broom,  contra. 

The  rules  of  law  which  have  been  referred  to  on  the  other  side 
apply  only  where  the  charter  is  silent.  Here  there  is  a  distinc- 
tion expressly  taken  between  stockholders  and  members.  The 
1st,  4th,  5th  and  7th  sections  afford  evidences  of  this  intention. 
There  were  necessarily  member*  before  there  were  any  stock- 
holders. The  provision  for  future  members  is,  that  the  directors 
may  admit  them ;  not  that  every  stockholder  might  make  as  many 
members  as  he  had  shares  to  assign.  The  power  to  the  directors 
to  admit  members  is  necessarily  an  exclusive  one.  The  only 
mention  of  stockholders  is  in  the  7th  section,  where  a  dividend  is 
provided  for.  If  the  stockholders  alone,  were  to  be  considered 


1836.]  OF  PENNSYLVANIA.  465 

(Case  of  the  Philadelphia  Savings  Institution.) 

members,  it  might  follow  that  the  greater  part  of  the  profits 
would  be  appropriated  to  them,  to  the  prejudice  of  the  depositors. 
The  legislature  probably  intended  that  a  check  should  exist  upon 
this  power.  This  is  not  a  monied  corporation,  in  the  sense  in 
which  that  term  is  commonly  used.  The  primary  object  is  the 
security  and  benefit  of  the  depositors.  The  creation  of  the  capi- 
tal stock  is  stated  in  the  act  to  be  for  the  security  of  the  de- 
positors. Upon  the  principle  relied  upon  on  the  other  side,  the 
depositors  ought  to  have  the  control  of  the  institution.  The  by- 
law made  by  the  directors,  confining  membership  to  stockholders, 
was  beyond  their  power  ;  besides  it  has  been  repealed  by  the 
members  in  the  manner  authorized  by  the  act  of  assembly. 

The  following  cases  Avere  cited :  Sergeant  v.  The  Franklin  Ins. 
Co.  (8  Picker.  90  ;)  Quiner  v.  Marblehead  Ins.  Co.  (10  Mass. 
Rep.  476;)  Lamb  v.  Durand,  (12  Mass.  Rep.  57;)  1  Blackst. 
Com.  392,  484,  (note ;)  5  Mod.  259  ;  Angel  &  Ames,  244. 

*The  opinion  of  the  Court  was  delivered  by 
ROGERS,  J. — The  rules  obtained  in  this  case,  involve 
two  questions,  which  depend  upon  the  construction  of  the  act  of 
the  5th  of  April,  1834,  incorporating  the  Philadelphia  Savings 
Institution. 

1.  Is  a  stockholder,  a  member  of  the  corporation,  and  as  such 
entitled  to  participate  in  its  business  ? 

2.  Does  he  cease  to  be  a  member  when  he  ceases  to  be  a  stock- 
holder ? 

In  relation  to  the  power  of  admitting  members  of  a  corpora- 
tion, as  is  said  in  Angel  and  Ames  on  Corporation,  62,  reference 
must  often  be  had  to  the  provisions  and  spirit  of  the  charter ; 
and  when  the  charter  is  silent,  we  must  look  to  the  provisions  of 
the  common  law,  and  to  the  particular  nature  and  purpose  of  the 
corporation.  In  certain  corporations,  (such  for  example  as  reli- 
gious, charitable,  and  literary,)  the  number  of  members  is  often 
limited  by  charter  ;  and  whenever  there  is  a  vacancy,  it  is  usually 
filled  by  a  vote  of  the  company.  As  regards  trading  and  joint 
stock  operations,  no  vote  of  admission  is  .requisite ;  for  any  person 
who  owns  stock  therein,  either  by  original  subscription  or  by  con- 
veyance, is  in  general  entitled  to,  and  cannot  be  refused  the  rights 
and  privileges  of  a  member.  Grray  v.  Portland,  (3  Mass.  R. 
364 ;)  King  v.  Bank  of  England,  (Doug.  524.)  In  monied  in- 
stitutions, such  as  banks,  insurance,  canal,  and  turnpike  compa- 
nies, &c.  the  mere  owning  of  shares  in  the  stock  of  the  corpora- 
tion, gives  a  right  of  voting ;  and  a  stockholder  ceases  to  be  a 
member  by  a  transfer  of  stock.  There  is  then  this  marked  dis- 
tinction arising  from  the  nature  of  the  corporation.  In  the  one 
case,  a  pecuniary  interest  is  the  evidence  of  membership ;  whilst 


406  SUPREME  COURT  [March  Term, 

(Case  of  the  Philadelphia  Savings  Institution. ) 

the  affairs  of  religious,  charitable  or  literary  institutions,  are 
committed  to  those  who  have  no  pecuniary  interest  whatever  in 
their  management.  If  this  were  a  corporation  of  the  former  de- 
scription, it  would  greatly  strengthen  the  argument  of  the  respon- 
dent's counsel,  but  I  cannot  view  it  in  that  light,  but  look  upon 
this  and  all  institutions  of  a  like  kind,  as  partaking  of  the  nature 
of  a  charity,  where  the  professed  object  is  to  advance  the  inter- 
ests of  the  poor  and  helpless.  The  object  of  this  institution  is 
declared  to  be,  to  receive  from  time  to  time,  from  all  persons  dis- 
posed to  entrust  them  therewith,  such  funds  as  may  be  deposited 
with  them,  and  for  which  they  are  to  pay  to  the  depositors  such 
rates  of  interest,  as  may  be  from  time  to  time  agreed  upon  by 
the  directors.  These  deposits,  as  is  well  known,  are  made  in 
small  sums  by  the  poor ;  and  the  institution  is  professed  to  be 
more  especially  for  their  benefit.  In  aid  of  this  object,  and  as 
subsidiary  to  it,  the  Legislature  in  the  third  section  directs,  that 
for  the  security  of  the  depositors,  &c.,  it  shall  be  the  duty  of  the 
persons  before  named,  and  of  their  associates,  to  raise  a  capital, 
&c.  of  not  less  than  $200,000,  in  shares  of  $25  each  ;  which  capi- 
r*4R71  ^  *8  ^°  ^e  a^  *a^  times  liable  to  depositors  for  the 
amount  of  their  deposits  and  the  interests. 

In  other  institutions  of  the  like  kind,  the  latter  provisions  are 
omitted :  they  were  manifestly  introduced  into  this  charter,  not 
for  the  benefit  of  the  stockholders,  but  as  an  additional  security 
or  pledge  to  the  depositors.  As  an  inducement  to  make  this  in- 
vestment, in  the  sixth  section,  the  corporation  is  authorized  to 
invest  its  funds  <:  in  public  stocks  of  this  State,  or  the  United 
States,  or  real  securities,  or  in  the  discount  of  notes  and  personal 
securities  ;"  and  in  the  seventh  section,  the  directors  are  author- 
ized to  declare  a  dividend  of  the  interest  and  profits  of  the  cor- 
poration, after  paying  its  expenses,  and  to  pay  it  over  to  the 
stockholders,  or  their  legal  representatives.  It  seems  to  me,  most 
clear,  that  the  Legislature  had  no  intention  of  establishing  a 
joint  stock  company,  but  that  there  was  a  mere  modification  or 
change  in  the  provisions  usually  inserted  in  the  charters  of  savings 
fund  institutions. 

But  at  any  rate,  these  rules  of  construction  only  apply  when 
the  charter  is  silent.  So  that  in  this,  as  in  every  other  case,  we 
must  look  to  the  act  itself,  having  regard  to  the  particular  nature 
and  purpose  of  the  corporation.  In  the  charter  there  are  an- 
tagonist interests  ;  the  interest  of  the  stockholders  is  in  some 
measure  in  opposition  to  the  interest  of  the  depositors.  It  is  for 
the  benefit  of  the  one  to  decrease,  and  of  the  other  to  increase 
the  rate  of  interest  on  deposits ;  and  hence,  there  may  be  a  pecu- 
liar propriety  in  the  Legislature  to  entrust  the  control  of  the 
funds  to  persons  who  have  no  pecuniary  interest  in  the  corpora- 


1836.]  OF  PENNSYLVANIA.  467 

(Case  of  the  Philadelphia  Savings  Institution.) 

tion.  At  least,  I  perceive  nothing  in  this,  of  which  the  stock- 
holders have  any  right  to  complain.  If  the  stockholders  have  the 
exclusive  management  of  the  institution,  for  which  the  respondents 
contend,  a  temptation  is  held  out  to  divert  the  institution  from  its 
original  and  primary  object  and  convert  it  into  a  bank,  differing 
only  in  the  fact,  that  it  is  a  bank  of  discount  and  deposit,  and  not 
of  circulation.  Besides,  if  a  pecuniary  interest  is  the  only  cri- 
terion of  membership,  it  may  with  equal  plausibility  be  said,  that 
the  depositors  are  members  also,  and  as  such  entitled  to  partici- 
pate in  its  management.  In  the  first  section  it  is  enacted  "  that 
the  persons  therein  named,  and  all  and  every  other  person  or  per- 
sons, hereafter  becoming  members  of  the  Philadelphia  Savings  In- 
stitution, in  the  manner  hereafter  mentioned,  shall  be  and  are 
hereby  created  and  made  a  corporation  by  the  name  and  style  of 
the  Philadelphia  Savings  Institution."  The  manner  in  which  they 
can  become  members,  is  pointed  out  in  the  fifth  section.  Among 
other  matters,  the  directors  have  power  to  provide  for  the  admis- 
sion of  members  and  furnishing  jjroofs  of  such  admission.  This, 
we  conceive,  to  be  inconsistent  with  the  idea,  that  a  stockholder  is 
ipso  facto  a  member  of  the  corporation ;  for  if  so  why  confer  the 
power  to  provide  for  the  admission  of  members  ?  The  Legislature 
do  not  confine  the  power  to  furnishing  proofs  of  the  admission 
*of  members,  but  they  in  express  words,  grant  the  r*j£c-j 
power  to  admit  members  of  the  corporation.  This  we  *- 
conceive,  to  be  an  authority  to  elect  such  persons  as  members,  as 
they  may  deem  best  fitted  to  carry  into  effect  the  objects  of  the 
charter.  The  respondent's  case  also  derives  additional  strength 
from  the  seventh  section.  A  distinction  is  there  taken  between  a 
member  of  the  corporation,  and  a  stockholder.  It  is  made  the 
duty  of  the  directors  to  appoint  from  the  members  of  the  corpora- 
tion, five  competent  persons  as  a  committee  of  examination  to  in- 
vestigate the  affairs  of  the  corporation ;  and  in  the  same  section, 
to  declare  a  dividend,  &c.  and  to  pay  the  same  over  to  the  stock- 
holders, or  their  legal  representatives.  Why,  it  has  been  asked, 
this  change  of  phraseology,  if  a  stockholder,  as  such,  is  a  member 
of  the  corporation  ?  It  is  also  worthy  of  remark,  that  the  Legis- 
lature wholly  omit  to  regulate  the  right  of  voting ;  a  regulation 
always  introduced  in  all  joint-stock  incorporations.  It  is  the  uni- 
form policy  to  limit  the  number  of  votes  to  which  stockholders  may 
be  entitled,  in  all  such  companies ;  a  limitation  which  would  not 
have  been  omitted,  had  the  Legislature  conceived  this  to  be  an  in- 
stitution of  that  description. 

Reliance  has  been  placed  on  the  word  "associates,"  in  the 
third  section,  which  the  counsel  for  the  commonwealth  says,  must 
refer  to  stockholders.  This  is  an  argument  not  without  plausi- 
bility. This  section  makes  it  the  duty  of  the  persons  named  in 


4G8  SUPREME  COURT  [March  Term, 

(Commonwealth  r.  Alburger.) 

the  act,  and  of  their  associates,  to  raise  a  capital  of  not  less  than 
$200,000  ;  but  in  what  manner  this  is  to  be  effected,  is  left  to 
their  discretion.  It  would  seem  to  be  the  intention  of  the  Legis- 
lature to  give  power  to  admit  members  before,  as  well  as  after 
the  capital  was  raised ;  and  indeed  they  might  have  required  the 
aid  of  others  than  those  named,  to  effect  this  result.  I  see 
.nothing  in  the  act  which  forbids  this  ;  but  I  think  a  fair  construc- 
tion of  this  part  of  the  charter,  shows  that  this  power  was  intended 
to  be  given.  If  so,  this  is  an  argument  to  show  that  a  monied  in- 
terest, is  not  an  indispensable  condition  of  membership. 

It  is  said,  that  the  directors  have  passed  a  by-law,  that  every 
member,  who  shall  cease  to  be  a  stockholder,  shall  cease  to  be  a 
member.  Whether  this  be  so  or  not,  is  of  little  importance  ;  for 
although  the  charter  gives  authority  to  the  directors  to  admit 
members,  there  is  none  given  to  disfranchise  them.  A  by-law 
may  modify  and  change  the  constitution  of  a  corporation,  but 
cannot  alter  it.  It  may  regulate  in  a  reasonable  manner,  the 
exercise  of  a  right  in  the  internal  affairs  of  a  corporation,  in  the 
conduct  of  its  members,  or  the  mode  by  which  a  person  is  ad- 
mitted to  the  exercise  of  a  right  to  which  he  has  an  inchoate  title  ; 
but  it  cannot  take  away  a  right,  or  impose  any  unreasonable 
restraint  in  the  exercise  of  it.  2  Kyd  on  Corporations,  107, 
122. 

Rules  discharged. 

Cited  by  Counsel,  4  Casey,  350. 

Citctl  by  the  Court,  3  Wharton,  247 


[*469]  ['PHILADELPHIA,  APRIL  28,  1836.] 

TIIE  COMMONWEALTH  a./ain*t  ALBURGER  and  Others. 

1.  The  North-eastern  square  of  ground  in  the  city  of  Philadelphia,  now 
called  "The  Franklin  Square,'*  was  dedicated  to  public  use  by  William 
Penn  at  the  foundation  of  the  city  ;  so  that  neither  he  nor  any  person 
succeeding  to  his  title,  as  Proprietary,  could  afterwards  grant  the  exclu- 
sive UHC  of  any  part  of  the  same  to  any  person  or  corporation.     A  grant 
therefore,  of  a  part  of  the  Square  in  1741,  to  a  religious  Corporation,  for 
the  purpose  of  a  burying  ground,  was  held  to  be  void. 

2.  A  grant  will  not  be  presumed  of  a  part  of  a  public  square  or  street,  from 
the  lapse  of  time,  so  as  to  bar  an  indictment  for  a  nuisance. 

3.  Copies  of  old  rnajw  ami  plans  of  the  City  of  Philadelphia,  in  the  office 
of  the  Surveyor  General,  and  certified  by  him,  held  to  be  admissible  in 
evidence,  on  the  question  of  the  title  to  an  open  square  in  the  city. 

4.  The  "list  of  first  purchasers,"  with  the  advertisement  annexed,  held 
to  be  admissible  in  evidence  on  the  same  question. 

5.  Historical  books  which  have  lx.'en  generally  received  as  authentic,  are 
admissible  as  furnishing  evidence  of  remote  transactions. 


1836.]  OF  PENNSYLVANIA.  469 

(Commonwealth  v.  Alburger.) 

IN  the  Mayor's  Court  of  the  City  of  Philadelphia,  at  June 
Sessions,  1834,  an  indictment  was  found  against  John  Alburger, 
William  Bruner,  and  thirteen  others,  for  a  nuisance  in  the  erection 
of  a  certain  fence  and  wooden  building  upon  a  part  of  the  north- 
eastern public  square  in  the  city  of  Philadelphia,  called  the  Frank- 
lin Square. 

This  indictment  having  been  removed  by  certiorari,  into  this 
Court,  the  cause  came  on  for  trial  at  a  Court  of  Nisi  Prius,  held 
by  the  Chief  Justice,  in  the  city  of  Philadelphia,  on  the  14th  of 
March,  1836. 

It  was  alleged  on  the  part  of  the  Commonwealth,  that  the  square 
of  ground  in  question  was  given  to  the  city  of  Philadelphia  for 
public  use,  by  William  Penn,  the  Proprietary  of  Pennsylvania,  at 
the  foundation  of  the  city. 

The  defendants  were  the  Trustees,  Elders,  and  Deacons  of 
"The  German  Reformed  Congregation  in  the  city  of  Philadel- 
phia," and  claimed  the  exclusive  right  to  the  occupation  of  a  por- 
tion of  the  said  public  square,  under  a  warrant  from  Thomas  Penn, 
the  then  Proprietary,  dated  the  18th  of  June,  1741,  a  survey 
made  in  December,  1763,  and  a  patent  granted  in  the  same  month 
and  year. 

On  the  trial,  the  Commonwealth  gave  in  evidence  certain  anci- 
ent documents  and  printed  books,  after  objections  made  on  the  part 
of  the  defendants,  which  were  overruled  by  the  Court,  viz.: 

1.  A  certified  copy  from  the  Surveyor  General's  office,  of  a  plan 
or  map  entitled  "A  portraiture  of  the  City  of  Philadelphia,  &c., 
by  *Thomas  Holme,  Surveyor  General,"  published     r*47fn 
in  London  about  the  year  1683. 

2.  A  certified  copy  from  the  same,  of  the  "List  of  first  purchas- 
ers," with  an  advertisement  subjoined,  upon  the  situation  and 
extent  of  the  city  of  Philadelphia. 

3.  A  certified  copy  from  the  same,  of  an  ancient  general  plan  of 
the  city,  remaining  in  the  Surveyor  General's  office. 

4.  A  certified  copy  from  the  same,  of  Reed's  map  of  the  city. 

5.  A  warrant  to  the  German  Lutheran  Congregation,  for  a  lot  of 
land  bounded  eastward  by  "the  public  square,"  dated  April 
16th,  1776 ;  and  a  patent  for  the  same  lot  to  the  same,  dated 
August  25th,  1781. 

6.  Part  of  a  note  to  the  2d  vol.  of  the  Laws  of  Pennsylvania,  by 
Charles  Smith,  Esq.  containing  an  account  of  Holme's  plan, 
and  the  list  of  first  purchasers. 

7.  The  book  of  minutes  of  the  Board  of  Managers  of  the  Penn- 
sylvania Hospital,  containining   certain  instructions  from  the 
Proprietaries  to   the  Governor  of  Pennsylvania,  the  remarks 
of  the   Board   of  Managers   thereupon,   and   their  letter  to 


470  SUPREME  COURT  [March  Term, 

(Commonwealth  v.  Alburger.) 

Thomas  Hyam  and  Sylvanus  Bevan,  dated  2d  of  7  mo.  1752, 

in  answer  thereto. 
8.  A  printed  book  called  "Some  account  of  the  Pennsylvania 

Hospital,"  dated  in  1754,  containing  the  same  documents. 

In  the  course  of  their  testimony,  the  defendants  offered  in  evi- 
dence the  following  documents,  which  were  objected  to  on  the  part 
of  the  Commonwealth;  and  the  Court  refused  to  admit  them, 
viz.: 

1.  A  paper  purporting  to  be  certified  by  Peter  Zachary  Lloyd, 
Clerk  of  the  General  Assembly,  and  to  be  a  copy  of  a  report 
made  by  the  Committee  to  whom  was  referred  a  memorial  of 
the  Trustees,  Elders,  &c.  of  this  church,  presented  in  1782. 

2.  A  paper  purporting  to  be  the  copy  of  an  opinion  of  William 
Bradford,  Esq.  on  the  right  of  the  defendants  to  the  occupation 
of  the  ground ;  dated  the  3d  of  February,  1783. 

A  variety  of  evidence  was  produced  on  each  side,  relating  to 
the  original  plan  of  the  city,  the  alterations  therein,  and  the  acts 
and  doings  of  the  corporation  of  the  city,  and  the  religious  cor- 
poration represented  by  the  defendants. 

The  defendants  finally  submitted  to  a  verdict  being  taken 
against  them  on  the  charge  of  the  Chief  Justice  in  favor  of  the 
prosecution  on  all  points,  with  leave  to  assign  their  reasons  for  a 
new  trial,  in  order  to  have  the  full  benefit  of  their  defence  in 
bank ;  where  the  cause  was  to  be  considered  on  the  whole  evi- 
dence. 

Several  reasons  for  a  new  trial  were  filed  on  the  part  of  the  de- 
fendants, relating — 

1st.  To  the  admission  or  rejection  of  testimony. 

2d.  To  the  charge  of  the  Court. 

r*4711         *The  questions  arising  upon  these  points  were  elabo- 
J     orately  argued  by  Mr.  W.  M.  Meredith  and  Mr.  •/.  R. 
Ingersoll,  (with  whom  was  Mr.   Olmstead,')  for   the  Common- 
wealth, and  by  Mr.  Randall  and  Mr.  Sergeant,  for  the  defendants. 
The  principal  topics  of  the  argument  being  adverted  to  in  the 
opinion  of  the  Court,  it  is  deemed  sufficient  to  give  the  authorities 
cited  on  each  side. 

On  the  part  of  the  Commonwealth : 

1.  On  the  questions  of  evidence  were  cited  Hunt  v.  Dippo, 
(1  Dall.  25;)  1  Starkie,  169;  2  Starkie,  167;  Hill  v.  West  (4 
Yeates,  144 ;)  Shield  v.  Buchanan,  (2  Yeates,  119  ;)  Ross  v. 
Cutshall,  (2  Binn.  402  ;)  Blackburn  v.  Holliday,  (12  Serg.  &  R. 
140;)  Lord  Sussex  v.  Temple,  (Ld.  Rayd.  311  ;)  Sturgess  v. 
Waugh,  (2  Yeates,  477  ;~)  Read  v.  Jar  IT  son,  (1  East,  355;)  Cauff- 
man  v.  The  Congregation,  $c.  (6  Binn.  59  ;)  Bull.  N.  P.  95  ;  14 


1836.]  OF  PENNSYLVANIA.  471 

(Commonwealth  v.  Alburger.) 

East,  327,  (note ;)  Barnes  v.  Mawson,  (1  Maule  &  Sel.  77 ;) 
Weekes  v.  Sparke,  (Ld.  679.) 

2.  On  the  question  of  the  title  of  the  defendants,  Common- 
wealth v.  M'Donough,  (16  Serg.  £  R.  390  ;)  Rung  v.  Shone- 
berger,  (2  Watts,  23 ;)  Western  University  v.  Robinson,  (12  Serg. 
&  R.  29  ;)  Pennant's  Hist,  of  London,  234 ;  Harper  v.  Charles- 
worth,  (4  Barn.  &  Ores.  574 ;)  Justin.  Inst.  Book  I.  tit.  6,  §  1 ; 
Cod.  Book  VII,  tit.  38,  §  2 ;  1  Domat.  271,  273  ;  2  Domat,  174  ; 
Erskirie's  Inst.  519,  525;  Arundel  v.  M'Cullough,  (10  Mass. 
Rep.  70 ;)  Nickerson  v.  Brackett,  (Id.  212 ;)  Staughtonv.  Baker, 
(4  Mass.  Rep.  528  ;)  Weld  v.  Harnby,  (7  East,  195  ;)  Rex  v. 
Cross,  (3  Campbell,  227 ;)  Doe  v.  Reed,  (5  Bam.  &  Aid.  232 ;) 
G-oodtitle  v.  Baldwin,  (11  East,  488 ;)  Hylton  v.  Brown,  (1 
Wash.  C.  C.  Rep.  204;)  Allen  v.  Lyons,  (2  Wash.  C.  C.  Rep. 
475  ;)  Penn's  Lessee  v.  Klyne,  (4  Dall.  403  ;)  Commonwealths. 
Passmore,  (1  Serg.  &  R.  217 ;)  1  Leon.  190  ;  Chamberlain  of 
London's  Case,  (3  Leon.  265 ;)  Rex  v.  Ld.  G-rosvenor,  (2 
Starkie's  Rep.  511 ;)  1  Wm.  Black.  591 ;  1  Proud's  Hist,  of 
Penn.  169,  242;  Howell  v.  Barclay,  (6  Peters'  Rep.  512;) 
Melbyn  v.  Whiting,  (10  Picker,  295;)  Cortelyouv.  Van  Brunt, 
(2  Johns.  Rep.  362 ;)  Packard  v.  Williams,  (7  Wheat.  109 ;) 
Emerson  v.  Wiley,  (7  Picker,  68  ;)  Conn  v.  Penn,  (1  Peters'  C. 
C.  Rep.  514 ;)  Blundell  v.  Catteral,  (5  Barn.  &  Aid.  268  ;) 
Cor  field  v.  Cory  ell,  (4  W.  C.  C.  R.  379  ;)  Kean  v.  Rice,  (12 
Serg.  &  R.  209 ;)  Arnold  v.  Munday,  (1  Halsted,  71 ;)  HaWs 
Case,  (1  Ventris,  169  ;)  Kirk  v.  Smith,  (9  Wheat.  282  ;)  Mayor, 
£c.,  of  New  Orleans  v.  The  U.  States,  (Sup.  Ct.  U.  S.  1836, 
MS. ;)  Act  of  loth  April,  1782  §  xi.  (2  Smith,  48;)  Freytagv. 
Powell,  (District  Court  Philad.  MS.*) 

*0n  the  part  of  the  defendants,  were  cited,  r*1791 

1.  Act  of  31st  March,  1823,  (Purd.  382  ;)  Biddle 

v.  Shippen,  (1  Dall.  19 ;)  Morris  v.  Vanderen,  (1  Dall.  67 ;) 
Packer  v.  Gronsalus,  (1  Serg.  &  R.  626.) 

2.  2d.  Proud's  Hist.  Penn.  41,  53;  Pennant's  London,  233,  4; 
Watson's  Annals  of  Philadelphia,  155,  &c. ;  King  v.  Ward,  (Cro. 
Car.  266 ;)  Newmarch  v.  Brantley,  (3  Swanst.  99 ;)  2  Selw.  503, 
n. ;    Woodyear  v.  Hadden,  (5  Taunt.  126  ;)  Rex  v.  Lloyd,  (1 
Campb.  263,  n.;)  MlConnell  v.  Lexington,  (12  Wheat.  585;) 
Maclay  v.  Work,  (5  Binn.  157  ;)  Town  of  Pawlett  v.  Clark,  (9 
Cranch,  331 ;)  City  of  Cincinnati  v.  White,  (6  Peters'  Rep.  431 ;) 
Maclay  v.  Work,  (5  Binn.  157  ;)  Barter  v.  The  Commonwealth, 
(3  Penn.  Rep.  253  ;)  New  York  Fire  Ins.  Co.  v.  Sturgis,  (2  Cowen, 

*  This  case  being  frequently  referred  to,  I  have  obtained  a  note  of  the 
decision  through  the  kindness  of  Judge  Pettit,  and  shall  insert  it  in  the  ap- 
pendix to  this  volume. — REP. 


472  SUPREME  COURT  [March  Term, 

(Commonwealth  D.  Alburger.) 

604  ;)  Head  v.  The  Providence  Ins.  Co.  (2  Cranch,127,  166;) 
Mat/ill  v.  Brown,  (C.  C.  U.  S.  Perm.  Pamphlet  ;)  Duke  on  Uses, 
174  ;  Stat.  43  Eliz.  cap.  4,  §  6,  2  Ruff  head,  709  ;  9  Peters'  Rep. 
960  ;  2  Anstruther,  617  ;  Doe  v.  Wilson,  (11  East,  56  ;)  Roe  v. 
Ireland,  (11  East,  280  ;)  12  Rep.  5  ;  3  Dow's  Rep.  112  ;  King 
v.  Nevile,  (Peake's  N.  P.  C.  91  ;)  King  v.  Smith,  (4  Esp.  N.  P. 
109  ;)  lliwrd  v.  Williams,  (7  Wheat.  109  ;)  Barclay  v.  How  ell 
(6  Peters'  Rep.  498,  512  ;)  Jackson  v.  M'Call,  (10  Johns.  Rep. 
380;)  Jai'kson  v.  Lunn,  (3  Johns.  Gas.  117;)  Beardsley  v. 
French,  (7  Conn.  Rep.  125  ;)  Mather  v.  Trinity  Church,  (3 
Serg.  &  R.  510;)  Somerville  v.  Holliday,  (1  Watts,  514;) 
Sugdcn  Vend.  480  ;  CW  v.  Jack,  (3  Watts,  238)  ;  Le  Fevre  v. 
j&«  Fevre.  (4  Serg.  &  R.  244  ;)  Werkheiser  v.  Werkheiser,  (3 
Rawle,  326  ;)  Prevost  v.  (rrate,  (6  Wheat.  491.) 


The  opinion  of  the  Court  was  delivered  by 

SERGEANT,  J.  —  This  is  substantially  a  question  as  to  the  right 
of  property  in  a  portion  of  one  of  the  public  squares  of  this  city, 
and  has  been  discussed  with  a  learning  and  ability  proportioned 
to  its  importance.  The  right  it  involves,  is  of  a  peculiar  kind, 
and  for  ite  determination,  requires  an  investigation  into  the  origin 
and  early  history  of  the  city,  as  well  as  a  notice  of  several  later 
transactions  of  the  proprietaries,  the  commonwealth  who  suc- 
ceeded to  their  rights,  the  city  corporation,  and  the  defendants  or 
their  predecessors. 

It  appears  that  William  Penn,  in  July  1681,  after  obtaining  a 
charter  for  the  province,  deeming  a  large  town  or  city  within  its 
bounds,  essential  to  the  success  of  his  enterprise,  by  the  first 
article  of  the  conditions  or  concessions  agreed  upon  in  England, 
stipulated  with  those  who  embarked  with  liim  in  the  project,  and 
purchased  large  quantities,  of  land  in  Pennsylvania,  commonly 
called  first  purchasers,  that  on  their  arrival  here,  a  certain  quan- 
tity of  land,  or  ground  plat  should  be  laid  off  for  a  large  town  or 
city  in  the  most  convenient  place  on  the  river,  for  health  and 
navigation  ;  and  by  article  5,  that  the  proportion  of  ground 
therein  should  be  ten  acres  for  every  five  hundred  acres  of  land 
purchased,  (or  two  per  cent.)  if  the  place  would  allow  it.  Intending 
\*-¥"\~\  liberally  to  fulfil  his  engagement,  he  appointed  *Thomas 
Holme  (his  surveyor-general)  and  others,  commissioners 
to  lay  out  a  city  of  ten  thousand  acres.  A  town  on  such  a 
scale,  however,  would  have  scattered  the  inhabitants  over  many 
miles,  and  defeated  the  chief  design  of  a  city,  which  was,  that  it 
might  be  the  residence  of  the  merchants,  gentlemen,  artisans  and 
others,  who  accompanied  him,  and  had  been  accustomed  in  Eng- 
land to  a  town  life  ;  the  centre  of  legislation,  trade,  arts,  and 
sciences  in  the  new  colony,  and  the  germ  of  its  civilization.  On 


1836.]  OF  PENNSYLVANIA.  473 

(Commonwealth  ».  Alburger.) 

his  arrival  here,  therefore,  and  consultation  with  such  of  the  first 
purchasers  as  were  present,  Thomas  Holme,  under  his  direction 
in  1683,  formed  the  present  plan  of  Philadelphia,  assigning  to  the 
first  purchasers  smaller  lots  on  the  streets,  and  adding,  as  a  fur- 
ther compensation,  larger  tracts  of  what  were  called  'liberty 
lands,'  lying  outside  of  the  city,  northwardly  and  westwardly,  as 
appurtenant  to  their  purchases  in  the  country.  The  site  of  the 
city,  its  length  and  breadth  were  then  fixed,  and  have  since  re- 
mained the  same.  The  plan  Avas  engraved,  and  impressions  taken 
for  the  use  of  those  interested.  It  is  entitled,  "A  Portraiture  of 
the  City  of  Philadelphia  in  the  Province  of  Pennsylvania  in  Amer- 
ica, by  Thomas  Holme,  Surveyor-General,  sold  by  John  Thornton 
in  the  Minories  and  Andrew  Sowle  in  Shorediteh,  London."  A 
copy  of  this  plan,  certified  by  the  surveyor-general  to  be  a  copy 
of  an  ancient  general  draught  called  a  plan  of  the  city  of  Phila- 
delphia, remaining  in  the  surveyor-general's  office,  and  purporting 
to  be  that  made  by  Thomas  Holme,  was  produced  on  the  trial, 
and  objected  to  as  not  evidence.  But  it  was  undoubtedly  evi- 
dence, being  a  copy  of  an  official  paper  on  file  in  the  proper  place, 
of  great  antiquity  and  public  importance.  A  copy  of  another  an- 
cient plan  remaining  in  the  office,  was  also  produced,  which  is  evi- 
dence on  similar  grounds. 

In  Hurst  v.  Dippo,  (1  Dall.  20;)  the  list  of  first  purchasers 
was  admitted  in  evidence,  to  prove  a  grant  of  5000  acres  from 
William  Penn,  by  deed  alleged  to  be  lost.  In  Morris  v.  Van- 
deren,  (1  Dall.  64;)  to  prove  title  to  a  city  lot,  a  copy  from 
the  Surveyor-General's  office  of  the  same  paper,  was  received.  In 
Kingston  v.  Lesley,  (10  S.  &  R.  387  ;)  Tilghman,  C.  J.  says,  it 
has  often  since  been  received:  and  on  the  same  grounds  the 
Court  then  admitted  in  evidence  a  paper  certified  by  the  Sur- 
veyor-General, to  be  a  true  copy  of  a  list  of  the  first  grantees  or 
renters  from  the  proprietaries,  extracted  from  book  No.  31,  re- 
maining in  the  office.  The  book,  the  Chief  Justice  says,  which 
contains  the  list  in  question,  "  is  among  the  public  books  pre- 
served in  the  Land  office ;  and  the  list  itself,  it  must  be  presumed, 
was  made  out  from  ancient  papers,  many  of  which  may  now  be 
lost,  or  perhaps  are  not  in  existence.  It  may  be  presumed  too, 
that  it  was  made  out  as  a  matter  of  public  convenience,  and  not 
with  a  view  to  private  evidence."  "Formerly,"  it  is  said  in  Ream 
v.  The  Commonwealth,  (3  S.  &  R.  209;)  "they  were  in  the  cus- 
tody of  the  proprietaries  and  their  officers,  but  since  the  Com- 
monwealth became  *a  sovereign  state,  the  books  of  the  r*474i 
land  office  have  been  committed  to  the  charge  of  officers  *- 
appointed  under  the  authority  of  the  government;"  and  by  the 
act  for  establishing  a  land  office,  passed  the  9th  of  April,  1781, 
copies  of  all  their  records  and  papers  are  made  as  good  evidence 


474  SUPREME  COURT  [March  Term, 

(Commonwealth  v.  Alburger.) 

as  the  original.  A  copy,  therefore,  of  a  map  of  the  city,  remaining 
in  the  Surveyor-General's  office,  as  one  of  the  records  or  papers 
of  that  office,  received  and  accredited  by  the  officers  as  authentic, 
and  proved  to  be  so  considered,  and  to  be  an  ancient  paper,  of 
course  handed  down  by  the  proprietary's  officers  from  early  times, 
relating  to  its  public  and  official  acts,  is  evidence.  Indeed,  it 
stands  exactly  on  the  same  footing  with  the  list  of  first  purchasers : 
for  this  list  merely  refers  to  numbers  "in  the  city  draught," 
without  which,  their  situation  could  not  be  found,  and  the  list 
itself,  would  be  unintelligible  and  useless,  and  the  title  lost.  The 
presumption  is,  that  these  maps  were  placed  there  by  the  proprie- 
tary or  his  officers,  as  public  documents  for  the  benefit  of  all  con- 
cerned, in  a  matter  of  great  public  importance.  They  have  been 
placed  where  they  ought  to  have  been,  in  the  source  and  deposi- 
tory of  all  matters  relating  to  the  origin  of  land  titles  in  Pennsyl- 
vania, superintended  by  a  public  officer  of  the  highest  authority, 
and  open  to  public  inspection,  where  cA'ery  person  might  'resort 
for  information  as  to  land  titles.  Even  a  survey  adopted  by  the 
land  office,  though  not  made  by  the  regular  officer,  is  evidence ; 
Shields  v.  Latta,  (2  Yeates,  219 ;)  it  being  considered  by  the 
Court  enough,  in  order  to  justify  their  being  read  to  the  jury,  that 
they  had  been  accepted  into  the  Surveyor-General's  office, 
acknowledged  by  the  receiver-general,  and  recognized  by  the 
board  of  property:  and  in  Itogg  v.  Cut  shall  (1  Binn.  402,)  the 
articles  of  agreement  between  Lord  Baltimore  and  the  proprie- 
taries, dated  the  4th  of  July,  1700,  acknowledged  before  a  master 
in  chancery,  and  enrolled  in  chancery  in  England,  not  proved,  nor 
recorded  here,  were  admitted ;  the  Court  saying  it  was  an  ancient 
deed,  and  might  be  considered  in  the  light  of  a  state  paper  well 
known  to  the  Courts  of  justice,  and  which  has  been  admitted  as 
evidence  on  former  occasions. 

Now  the  first  of  these  plans  lays  down  the  streets  of  the  city 
and  the  five  public  Squares,  lying  across  the  streets,  so  as  not  to  be 
mistaken  or  confounded  with  the  rest  of  the  ground  assigned  for 
lots  or  left  vacant.  The  lots  of  first  purchasers  are  marked  on  the 
plan  by  numbers.  In  three  of  the  Squares,  the  lots  run  up  to 
them,  and  in  front  of  them,  giving  ten  lots  on  the. south  and  east 
of  the  north-east  public  Square  ;  six  lots  on  the  north  and  east 
of  the  south-east  public  Square ;  and  five  lots  on  the  north  and 
west  of  the  south-west  public  Square;  but  no  lots  are  placed 
upon  the  Squares.  So  the  lots  continue  along  High  street  to 
the  Centre  Square,  both  from  Delaware  and  Schuylkill  Front 
streets,  but  stop  at  its  Iwundaries.  The  second  plan  agrees  with 
the  former ;  but  in  addition,  the  north-east  and  south-east  Squares 
P*  ,- - -|  have  written  on  their  face  "  eight  acres  for  public  *uses ;" 
the  north-west, "  eight  acres  given  for  public  uses  by  Wm. 


1836.]  OF  PENNSYLVANIA.  475 

(Commonwealth  v.  Alburger.) 

Penn,  Esq.;"  the  south-west, "  eight  acres  allotted  for  public  uses, 
&c."  On  the  Centre  Square  is  written  "  Centre  Square  ten 
acres."  This  is  strong  evidence  to  show  that  these  spaces  of 
ground  were  laid  out  as  squares  for  public  uses,  "distinct  from  the 
streets  and  lots  and  other  property  in  the  city  bounds,  when  the 
original  plan  of  the  city  was  made  by  its  founder. 

The  advertisement  annexed  to  the  list  of  first  purchasers, 
stands  on  the  same  footing  as  the  list  itself.  After  describing 
the  site  of  the  city  and  its  advantages,  it  says,  "in  the  centre  of 
the  city  is  a  square  of  ten  acres ;  at  each  angle  are  to  be  houses 
for  public  affairs,  as  a  meeting  house,  assembly  or  state  house, 
market  house,  school  house  and  severally  other  buildings  for  pub- 
lic concerns.  There  are  also  in  each  quarter  of  the  city  a  square 
of  8  acres,  to  be  for  the  like  uses  as  the  moorfields  in  London." 
Moorfields  were  secured  to  the  city  of  London  by  charter,  dated 
October  16th,  1638,  from  being  built  on,  and  that  they  should  be 
put  to  such  like  common  and  public  uses,  as  they  had  been  and 
were  used  for. 

Another  proof  of  the  same  facts  and  of  the  strongest  charac- 
ter, is  a  letter  from  Wm.  Perm  to  the  society  of  free  traders, 
(who  were  first  purchasers,)  dated  August  16th,  1683,  in  which 
he  writes  thus :  "  Philadelphia,  the  expectation  of  those  that  are 
concerned  in  this  province  is  at  last  laid  out,  to  the  great  content 
of  those  here,  that  are  any  ways  interested  therein.  I  say  little 
of  the  town  itself,  because  a  plat  from  it  will  be  shown  to  you  by 
my  agent,  in  which  those  who  are  purchasers  of  me  will  find 
their  names  and  interests"  This  letter  is  quoted  from  Penn's 
works,  by  Mr.  Smith,  in  his  edition  of  the  laws  printed  by  the  au- 
thority of  the  Legislature ;  and  may  be  found  in  Proud,  and  var- 
ious other  historical  works ;  and  of  such  ancient  historical  docu- 
ments, proceeding  from  a  public  source,  there  is  no  other  evidence 
to  be  had  after  the  lapse  of  time.  There  is  no  better  evidence 
that  I  know  of,  of  the  concessions  or  agreement  of  Wm.  Penn, 
with  the  first  purchasers,  than  that  they  are  contained  in  histories 
and  books,  and  have  been  treated  as  authentic  from  the  beginning. 
A  general  history  may  be  admitted,  to  prove  a  matter  relating  to 
the  kingdom  at  large.  B.  N.  P.  248;  1  Phil.  Ev.  338.  In  the 
case  of  St.  Katharine's  Hospital,  Lord  Hale  allowed  Speed's 
Chronicles  to  be  evidence  of  a  particular  point  of  history  in  the 
time  of  Edward  III.  (Ib.)  Chief  Justice  Pemberton  saying  lie 
knew  not  what  better  proof  they  could  have.  In  Neale  v.  Fry, 
(cited  1  Salk.  281,)  to  prove  a  forgery  of  a  deed,  chronicles  were 
produced  and  admitted  in  evidence  to  show  the  time  when  the 
Council  of  Spain  received  the  surrender  by  Charles  V.,  and  his 
son  Philip  took  his  titles  upon  him.* 

*See  2  Barr,  243. 


475  SUPREME  COURT  [March  Term, 

(Commonwealth  t>.  Alburger.) 

That  five  public  squares  were  thus  laid  off  by  the  founder  and 
the  first  purchasers  here,  in  the  original  plan  of  the  city  in  1683, 
and  were  then  dedicated  to  public  uses,  is  thus  a  fact  as  clearly 
r*l7fi1  established  as  *any  ancient  fact  can  be  by  evidence ;  es- 
pecially as  no  plan  or  draught  or  statement  to  the  con- 
trary, has  ever  been  made  or  suggested,  in  those  times  or  for  a 
long  time  after.  If  there  is  any  fact  in  the  history  of  the  city 
universally  acknowledged  without  question,  by  its  inhabitants,  by 
its  founder,  its  historical  writers,  its  maps  and  plans,  and  owners 
of  property,  and  settlers,  it  is  that  Penn  laid  off  five  public  squares 
for  public  uses.  And  as  we  have  the  matter  further,  the  fact  ap- 
pears more  and  more  confirmed. 

Wm.  Penn's  second  visit  here,  was  sixteen  years  after  his  first 
departure.  During  that  period,  a  change  had  occurred  in  public 
affairs  in  England,  and  in  his  private  circumstances  and  feelings, 
as  well  as  in  the  city  and  province.  Matters  of  property  here  de- 
rived a  much  greater  interest  from  these  causes  ;  and  transactions 
then  occurred  which  have  been  introduced  in  this  case,  and  have 
an  important  bearing  on  the  question  before  us. 

In  the  same  plan  of  the  city,  which  appears  to  have  been 
familiar  to  all,  and  was  the  basis  of  their  correspondence  and  acts, 
there  was  a  tract  lying  between  the  Delaware  Front  street  and 
the  river,  the  whole  breadth  of  the  city,  called  the  river  Front  or 
Bank;  on  which,  in  the  plan  no  lots  were  laid  off.  The  lot 
holders  on  Front  street,  who  were  among  the  most  influential  of 
the  first  purchasers,  had  claimed  a  right  to  the  bank  fronting 
them,  beyond  the  street,  down  to  the  water,  to  build  and  use  as 
they  pleased,  probably  as  a  sort  of  riparian  owners,  and  sent  a 
remonstrance  and  address  to  Penn  to  that  effect.  But  he  denied 
this  pretension,  stating  that  they  were  bounded  by  Front  street, 
that  the  rest  of  the  ground  next  the  water,  belonged  to  front  lot 
men  no  more  than  back  lot  men,  that  against  the  street  common 
wharves  might  be  built,  but  into  the  water  and  shore  was  no  pur- 
chaser's right.  He  moreover  stated  that  the  top  of  Front  street 
should  be  a  common  exchange  or  walk.  And  accordingly,  as 
early  as  1684,  the  next  year  after  the  plan,  (and  perhaps  sooner, 
for  we  have  had  but  a  few  patents  produced,)  he  sold  lots  on  the 
Bank,  restricting  the  purchasers  from  raising  their  buildings 
higher  than  four  feet  above  the  level  of  Front  street,  (provided 
subsequent  purchasers  were  so  restricted,)  and  reserving  an  im- 
proveable  ground  rent  of  one-third  of  the  value  at  the  end  of 
fifty -one  years.  In  1690,  however,  sales  were  made  without  this 
restriction,  and  King  or  Water  street  was  regulated.  The  whole 
bank  was  afterwards  sold  out,  the  purchasers  being  bound  to 
maintain  certain  stairways  from  Front  street  to  the  river.  As 
this  tract,  however,  lay  on  the  water,  certain  points  of  it  were 


1836.]  OF  PENNSYLVANIA.  476 

(Commonwealth  v.  Alburger.) 

from  the  first  settlement,  used  as  landing  places,  and  indeed,  were 
then  the  neighborhood  of  the  first  residents.  These  were  the 
Blue  Anchor,  (now  the  Drawbridge,)  and  the  Penny  Pot  House, 
(now  the  corner  of  Vine  street;)  and  being  used  constantly  as 
such,  Avere  not,  it  would  seem,  sold  to  ajiy  individual,  but  became 
indispensable  for  access  to  the  city,  and  were  employed  for  that 
purpose. 

*So  in  the  original  plan,  there  lay  northward  and  south-  r*j.77n 
ward  of  High  street,  a  considerable  space  of  ground,  on  •- 
which  no  lots  were  laid  oft'  at  all,  there  being  no  first  purchasers 
entitled  to  them;  and  many  others  to  the  westward  were  never 
taken  up  by  those  they  were  assigned  to.  A  discontent  seems  to 
have  existed,  that  they  were  not  given  as  the  property  of  the  city, 
and  the  idea  is  even  intimated  that  by  the  concessions,  Wm.  Penn 
was  to  give  the  first  purchasers  a  city,  and  therefore  these  be- 
longed to  them  in  common.  But  the  concessions  themselves  do 
not  justify  this  idea;  they  are  that  a  certain  quantity  of  land  or 
ground  plat,  should  be  laid  out  for  a  large  town  or  city,  and  that 
every  adventurer  or  purchaser,  should  by  lot  have  so  much  therein 
as  would  answer  to  his  proportion  of  land.  And  .Wm.  Penn's  own 
letter  to  the  society  of  Free  Traders,  states  that  the  city  was  laid 
out  to  the  full  content  of  all  concerned.  And  in  his  answer  to  the 
assembly  in  1701,  he  alleges  the  consent  of  the  first  purchasers 
here  to  the  re-aplotment,  and  in  that,  each  purchaser's  share  is 
lotted  and  bounded,  and  the  rest  was  made  up  by  liberty  lands. 
At  the  same  time  it  may  not  be  improbable,  that  the  gift  of  the 
squares  containing  42  acres,  was  a  kind  of  satisfaction  for  this  ex- 
pectation which  some  had  entertained,  though  without  any  engage- 
ment to  that  effect  on  his  part. 

The  river  front  ceased  to  be  an  object  of  discussion:  but  the 
streets,  and  the  commons,  as  they  were  called,  remained  so ;  and 
a  further  cause  of  complaint  was  the  quit  rents  reserved  on  the 
lots  laid  out.  A  correspondence  occurred  between  William  Penn 
and  the  assembly  just  before  his  departure,  in  which  these  subjects 
were  finally  adjusted,  and  a  charter  was  given  to  the  city  of 
Philadelphia,  specifically  naming  them,  and  ascertaining  the  rights 
of  the  city.  This  correspondence  is  to  be  found  entire  in  the  1st 
volume  of  the  Votes  of  Assembly,  145,  148,  and  I  shall  extract 
such  parts  as  relate  to  them. 

The  eight!  item  of  the  address  of  the  Assembly  to  Wm.  Penn, 
in  1701,  (incited  by  an  address  from  the  inhabitants  of  Philadel- 
phia,) is  thu,'.: — "VIII.  That  whereas  the  proprietary  formerly 
gave  the  purchasers  an  expectation  of  a  certain  tract  of  land, 
which  is  since  laid  out  about -two  miles  long  and  one  mile  broad, 
whereon  to  build  the  city  of  Philadelphia,  and  that  the  same 
should  be  a  Jree  gift,  which  has  since  been  clogged  with  divers 


477  SUPREME  COURT  [March  Term, 

(Commonwealth  r.  Alburger.) 

rents  and  reservations,  contrary  to  the  first  design  and  grant,  and 
to  the  great  dissatisfaction  of  the  inhabitants,  we  desire  the  gov- 
ernor to  take  it  into  consideration."  He  answers,  *'  you  are  under 
a  mistake  in  fact.  I  have  tied  you  to  nothing  in  the  allot- 
ment of  the  city,  which.the  first  purchasers  then  present  did  not 
seem  readily  to  comply  with,  and  I  am  sorry  to  find  their  names 
to  such  an  address  as  that  presented  to  you,  who  have  got  double 
lots  by  my  re-aplotment  of  the  city,  from  50  to  102  feet  front 
lots.  And  if  they  are  willing  to  refund  the  52  feet,  I  shall,  as 
r* .1781  you  desire,  be  easy  in  the  quit  rents,  although  this  *mat- 
J  ter  solely  refers  to  the  first  purchasers,  and  to  me  as 
proprietary." 

The  9th  item  of  the  Assembly  address,  is,  "  That  the  land 
lying  back  of  that  part  of  the  town  already  built,  remain  for 
common,  and  that  no  leases  be  granted  for  the  future  to  make 
enclosures  to  the  damage  of  the  public,  until  such  time  as  the 
respective  owners  shall  be  ready  to  build  or  improve  thereon; 
and  that  the  islands  and  flats  near  the  town,  be  left  to  the  inhabi- 
tants of  this  town  to  get  their  winter  fodder."  Answer.  "  You 
are  under  a  misapprehension  to  think  that  a  fourth  part  of  the 
land  laid  out  for  a  city,  belongs  to  any  body  but  myself,  it  being 
reserved  for  such  as  were  not  first  purchasers,  who  might  want  to 
build  in  future  time.  And  when  I  reflect  upon  the  great  abuse 
done  me  in  my  absence,  by  destroying  of  my  timber  and  wood, 
and  how  the  land  is  overrun  with  brush,  to  the  injury  and  dis- 
credit of  the  town,  it  is  small  encouragement  to  grant  your  re- 
quest. However,  I  am  content  that  some  land  be  laid  out  for  the 
accommodation  of  the  town,  till  inhabitants  present  to  settle  it, 
under  regulations  that  shall  be  thought  most  conducing  to'  the 
ends  desired;  about  which  I  shall  consult  with  those  persons 
chiefly  concerned  therein.  And  for  the  rest  of  the  9th  article 
about  the  islands,  I  know  not  which  you  mean,  nor  on  what  terms 
desired,  it  being  an  independent  property  from  the  town,  if  not 
from  the  province." 

The  10th  item  of  this  address,  is,  "That  the  streets  of  the  town 
be  regulated  and  bounded,  and  that  the  ends  of  streets  on  Dela- 
ware and  Schuylkill  be  unlimited,  and  left  free  to  be  extended  on 
the  river  as  the  inhabitants  shall  see  meet ;  and  that  public  land- 
ing places,  at  the  Blue  Anchor  and  Penny  Pot  House  be  con- 
firmed free  to  the  inhabitants  of  this  town,  not  infringing  on  any 
man's  property."  Answer.  "About  the  ends  of  streets  and 
other  public  landings  of  this  town,  I  am  willing  to  grant  the  ends 
of  streets,  Avhen  and  where  improved,  and  the  other  according  to 
your  request." 

There  was  here  then  an  understanding  on  these  disputed  points, 
how  far  the  proprietary  would  grant  them  to  the  city  ;  and  as 


1836.]  OF  PENNSYLVANIA.  478 

(Commonwealth  v.  Alburger.) 

he  was  about  departing  for  England,  the  inhabitants  set  about 
procuring  a  charter,  in  which  they  should  be  solemnly  recognized 
and  settled  forever.  Accordingly,  he  granted  the  city  a  charter, 
dated  the  25th  of  October,  1701,  in  which  they  are  inserted.  It 
ordains,  among  other  things,  that  the  streets  of  the  city  shall  for- 
ever continue  as  they  are  now  laid  out  and  regulated :  and  that 
the  end  of  each  street  extending  into  the  river  Delaware,  shall 
be  and  continue  free  for  the  use  and  service  of  the  said  city  and 
the  inhabitants  thereof,  who  may  improve  the  same  for  the  best 
advantage  of  the  said  city,  and  build  wharves  so  far  out  into  the 
river  there,  as  the  Mayor,  &c.,  shall  see  meet.  It  then  provides, 
by  various  clauses  in  the  common  style  to  incorporate  them,  and 
vest  them  with  various  franchises ;  and  in  the  close,  are  these 
provisions : 

*"  And  I  do  also  ordain,  that  the  landing  places  now  r*47q-i 
and  heretofore  used  at  the  Penny  Pot  House  and  Blue  L 
Anchor,  saving  to  all  persons  their  just  and  legal  rights  and 
properties  in  the  land  so  to  be  open,  as  also  the  swamp  between 
Budd's  buildings  and  the  Society  hill,  shall  be  left  open  and  com- 
mon for  the  use  and  service  of  the  said  city  and  all  others,  with 
liberty  to  dig  docks  and  make  harbors  for  ships  and  vessels,  in  all 
or  any  part  of  the  said  swamp." 

"  And  I  do  hereby  grant,  that  all  the  vacant  land  within  the 
bounds  and  limits  of  the  said  city,  shall  remain  open  as  a  free 
common  of  pasture,  for  the  use  of  the  inhabitants  of  the  said 
city,  until  the  same  shall  be  gradually  taken  in,  in  order  to  build 
or  improve  thereon,  and  not  otherwise.  Provided  always,  that 
nothing  herein  contained  shall  debar  me  or  my  heirs  in  time  to 
come  from  fencing  in  all  the  vacant  lands  that  lie  between  the 
Centre  Meeting  House  and  the  Schuylkill,  which  I  intend  shall 
be  divided  from  the  land  by  me  allotted  for  Delaware  side,  by  a 
straight  line  along  the  Broad  street,  from  Edward  Shippen's  land 
through  the  Centre  Square,  by  Daniel  Pegg's  land  ;  nor  shall  the 
fencing  or  taking  in  of  any  of  the  streets  happening  to  be  within 
that  enclosure,  on  Schuylkill,  be  deemed  or  adjudged  to  be  an 
encroachment,  when  it  shall  not  interfere  or  stop  any  of  the 
streets  or  passages  leading  to  any  of  the  houses  built  or  to  be 
built  on  that  side,  any  thing  herein  contained  to  the  contrary  not- 
withstanding." 

Thus  was  there  obtained  from  William  Penn,  a  grant  of  the 
landings  specified,  and  the  landings  at  the  ends  of  streets,  and 
what  was  necessary  to  the  enjoyment  of  the  latter,  the  perma- 
nence of  the  streets  as  laid  out:  and  as  to  the  commons,  only  a 
right  to  enjoy  them  till  improved,  with  an  express  reservation 
to  him,  of  a  right  to  fence  in  all  to  the  westward,  except  so  far 
as  they  stopped  the  passages  to  buildings  by  owners  claiming  or 

VOL.:.— 32 


479  SUPREME  COURT  [March  Term, 

(Commonwealth  t.  Alburger) 

to  claim  under  him.  But  nothing  was  said  in  this  charter  about 
the  squares ;  because  there  never  had  existed  any  dispute  in 
relation  to  them.  No  one,  the  founder  of  any  other,  from  the 
year  1083  to  1701,  claimed  a  right  in  them  different  from  the 
known  appropriation  in  the  plan  of  the  city.  Charters  are  com- 
monly for  the  purpose  of  granting  franchises  and  corporate 
privileges,  not  for  the  transfer  or  securing  of  property.  But 
sometimes,  when  a  doubt  or  dispute  has  existed  as  to  rights  to 
property,  they  are  used  to  declare  and  secure  them,  as  here  was 
done  in  reference  to  claims  disputed.  But  the  public  squares 
were  not  necessary  to  be  inserted,  simply  because  they  had 
never  been  questioned  or  doubted.  They  were  -known  to  have 
been  dedicated  by  the  founder  with  as  much  certainty  and 
solemnity,  as  the  city  bounds  or  the  lots  of  the  first  purchasers, 
and  had  the  same  evidence  of  their  existence.  I  do  not,  there- 
fore, consider  the  omission  to  insert  the  squares  in  tke  charter 
as  any  argximent  against  their  being  granted  by  the  founder  in 
the  manner  above  stated.  But  it  is  observable  that,  though 
r*l«ftl  ^ey  are  not  granted,  there  is  in  this  charter  *an  ex- 
J  press  reference  to  one  of  them  by  name ;  for  in  the 
clause  relating  to  the  commons,  Wm.  Penn  expressly  declares  his 
intention  to  divide  the  lots  on  the  Schuylkill  side,  from  those  on 
the  Delaware  side,  by  a  straight  line  along  Broad  street, 
"  through  the  Centre  square."  The  Centre  square  is  here  recog- 
nized as  known  to  all :  it  was  one  of  five,  and  stood  on  the  same 
foundation  as  the  rest ;  and  the  recognition  of  one,  nothing  to  the 
contrary  appearing,  is  tantamount  to  a  recognition  of  all. 

In  1700  we  had  another  transaction,  in  which  the  existence  of 
these  squares  is  expressly  recognized  by  the  commissioners  of 
property.  On  the  application  of  the  corporation  of  Philadelphia, 
a  patent  was  issued  to  them  for  the  chief  part  of  the  South-east 
public  square  ;  which  as  well  as  the  previous  warrant,  recites  its 
"being  one  of  those  squares,  which  at  the  original  plotting  of 
the  said  city,  were  intended  for  public  uses,"  coinciding  with  all 
that  we  have  previously  found  in  relation  to  them.  It  is  said, 
however,  that  the  word  here  i"  "  intended,"  and  not  dedicated, 
and  that  though  intended,  the  title  never  passed  till  something 
further  was  done,  and  the  proprietary  might  withhold  that 
further  act.  But  there  was  not  only  such  an  intention  in  the 
founder ;  there  were  his  solemn  acts  and  letters,  which  show  that 
it  was  already  laid  out  in  his  plot  of  the  city,  in  concert  with  the 
first  purchasers,  and  proclaimed  to  all  the  world,  first  purchasers, 
as  well  as  future  purchasers,  as  part  of  the  plan.  It  would  be  a 
fraud  in  a  founder  of  a  town  or  city  to  form  a  plan  in  concert 
with  those  who  bought  of  him,  and  thereby  profess  to  lay  out  a 
part  for  the  public  use,  and  then  attempt  to  withdraw  it.  He 


1836.]  OF  PENNSYLVANIA.  480 

(Commonwealth  u.  Alburger.) 

could  no  more  do  so  than  he  could  withdraw  their  lots  after  they 
were  assigned  to  them.  The  enjoyment  of  these  privileges  was 
part  of  the  consideration  of  their  agreeing  to  the  plan ;  and  any 
open  attempt  by  the  proprietary  to  do  so,  would  have  heen  in- 
stantly resisted.  William  Penii  himself,  however,  whose  virtue 
and  talents  will  always  place  him  among  the  great  men  of  his  age, 
never  attempted  thus  to  act.  Though  tenacious  as  to  his  property, 
on  his  second  visit  in  1701,  occasioning  thereby  much  discussion 
on  the  subject  of  city  property,  no  expression,  act,  or  suggestion 
of  his  is  found  during  that  time  or  afterwards  during  his  life,  man- 
ifesting a  thought  of  withdrawing  or  curtailing  his  gift  of  these 
squares  in  1683.  They  were  the  only  grant  to  public  uses  which 
he  made  at  his  first  visit:  at  the  second  the  assembly  obtained  a 
few  further  privileges,  but  he  refused  their  more  important  re- 
quests. 

Nor  can  I  consider  this  patent  as  the  acceptance  of  a  new  grant 
by  the  city  from  the  proprietary's  commissioners  of  property, 
and  therefore  an  evidence,  that  the  property  remained  at  his  dis- 
posal till  he  chose  to  confirm  it  by  a  formal  conveyance.  The 
original  dedication  was  a  grant  of  the  most  solemn  and  indelible 
character,  and  could  receive  no  confirmation  from  any  subsequent 
act  of  the  proprietary  *or  his  agents.  Considered  in  r#4.Q-j  n 
this  point  of  view,  the  patent  was  a  matter  of  superero-  *- 
gation.  But  there  was  another  object  for  which  this  patent 
might  well  operate.  The  public  uses  were  not  defined,  and  they 
are  here  declared  by  the  bestowers  of  the  gift  on  the  one  hand, 
and  the  corporation,  its  guardians,  on  the  other,  namely,  in  the 
first  instance,  for  a  public  burial-ground,  not  confined  to  the  bene- 
fit and  emolument  of  any  one  religious  corporation,  to  the  exclu- 
sion of  others,  or  to  any  class  of  persons  or  people  of  any  nation, 
but  for  everybody — for  the  public.  And  in  the  then  state  of 
the  city,  this  was  a  proper  use  to  be  made  of  in  the  square, 
furnishing  a  decent  burial  to  the  stranger  and  the  poor.  It 
lay  far  west  of  the  city  buildings,  which  were  then  confined 
chiefly  to  Water  and  Front  streets:  the  whole  around  it  was 
open  or  covered  by  wood  and  brush.  But  the  patent  itself  is 
carefully  drawn  so  as  to  recognize  the  ulterior  uses  which  the 
public  would  require,  and  which  are  the  same,  no  doubt,  as  were 
in  the  contemplation  of  William  Penn  in  1683,  whose  enlarged 
views  were  not  limited  to  the  present,  but  looked  to  the  interests 
of  future  generations.  It  was  to  be  "for  a  common  and  public 
burying  place,  for  the  service  of  the  city  of  Philadelphia,  for  in- 
terring the  bodies  of  all  manner  of  deceased  persons  whatsoever, 
whom  there  shall  be  occasion  to  lay  therein;"  but  this  was  not 
all,  it  is  declared  that,  "  for  the  further  improvement  of  the  said 
burying  place,  he  grants  full  and  free  liberty  to  the  mayor,  &c. 


481  SUPREME  COURT  [March  Term, 

(Commonwealth  v.  Alburger.) 

to  enclose,  fence,  plant,  build,  or  by  any  other  ways  or  means 
whatsoever,  to  improve  the  aforesaid  piece  of  ground,  as  they 
from  time  to  time  should  see  convenient."  This  early  recognition 
of  its  uses  by  the  personal  friends  and  confidential  officers  of  Wil- 
liam Penn,  shows  the  understanding  at  that  time. 

It  continued  a  potter's  field  down  to  the  revolution ;  but  since 
then  the  progress  of  the  city  up  to  it  and  beyond,  has  rendered 
such  an  use  of  it  no  longer  proper,  and  demanded  the  ulterior 
use,  that  of  setting  it  apart  as  a  source  of  air,  recreation,  and  or- 
nament, and  a  spot'  of  incalculable  value  as  such  in  the  midst  of  a 
population  already  dense,  and  daily  increasing  in  number  and 
closeness  of  buildings. 

From  this  time  down  to  the  year  1741,  we  hear  nothing  more 
about  these  public  squares.  William  Penn  died  in  1718,  his  sec- 
ond son,  Thomas  Penn,  was  then  a  minor:  the  province  had  here, 
as  governors,  none  of  the  family  until  1732,  when  Thomas  Penn 
arrived,  and  on  behalf  of  his  brothers  John  and  Richard  and  him- 
self, assumed  the  place  of  governor. 

In  1741  several  transactions  occurred  relating  to  two  of  these 
squares,  in  which  Thomas  Penn  undertook  to  make  dispositions 
in  regard  to  some  of  them  as  his  property,  alleging  that  they 
were  reserved  as  such  by  his  ancestor  William  Penn,  or  were 
vacant  ground.  On  the  1st  of  June,  1741,  he  issued  the  warrant, 
which  is  the  foundation  of  the  claim  of  the  defendants,  to  a  por- 
tion of  the  North-eastern  public  square.  This  warrant  is  signed 
F*4R21  ^  Thomas  *Pcnn,  and  is  directed  to  Benjamin  Eastburn, 
Surveyor-General,  and  recites,  that  "  whereas  Philip 
Bohm  and  Jacob  Seigel  had  requested  that  we  would  be  pleased 
to  grant  them  to  take  up,  in  trust  for  and  for  the  use  of  the 
German  Congregation  in  the  city  of  Philadelphia,  a  vacant  lot 
or  piece  of  ground  within  our  said  city,  situate  between  the  Sixth 
and  Seventh  streets,  bounded  northward  by  Vine  street,  eastward 
and  westward  by  vacancies,  and  southward  by  the  ends  of  Sassa- 
fras street  lots,  containing  in  length  north  and  south  306  feet,  in 
breadth,  east  and  west  150  feet,  for  which  they  agree  to  pay  to 
our  use  the  sum  of  .£50  sterling,  together  with  the  yearly  quit 
rent  of  5  shillings  sterling,  or  value  of  the  said  quit  rent  in  coin 
current,  &c."  and  then  requires  him  to  survey  the  said  vacant  lot 
and  make  return.  In  January,  1745,  .£13  sterling,  4  years  in- 
terest, and  4  years  quit  rent  were  paid  to  the  Receiver-general, 
stated  in  the  receipt  to  be  "  due  on  a  lot  between  Sixth  and 
Seventh  streets,  now  in  the  possession  of  the  German  Congre- 
gation." On  the  9th  Dec.  1763,  a  month  or  two  after  the 
arrival  of  John  Penn,  grandson  of  the  proprietary,  the  sum  of 
.£189  0  7  was  paid  to  the  proprietary  in  full  for  the  lot:  and 
on  the  14th  December,  1763,  a  patent  issued.  A  survey  had 


1836.]  •   OF  PENNSYLVANIA.  482 

(Commonwealth  ®.  Alburger. ) 

been  made  two  days  before  the  patent  issued,  viz.  on  the  12th 
December,  1763,  as  appears  by  a  note  written  within  the  lines  of 
the  lot,  marked  on  a  diagram  filed  in  the  surveyor-general's 
office,  and  signed  by  John  Lukens,  Surveyor-General,  as  follows: 
"  See  a  warrant  granted  to  Philip  Bohm  and  Jacob  Seigel,  dated 
18th  June,  1741,  surveyed  12th  December,  1763,  and  returned 
the  same  day  into  the  Secretary's  office  for  the  German  Congre- 
gation." 

If  this  square  were  really  a  vacant  lot  as  here  stated ;  if  it 
were  one  of  those  not  allotted  to  the  first  purchasers,  nor  granted 
to  any  subsequent  purchaser,  nor  dedicated  to  the  public,  then 
undoubtedly  Thomas  Penn,  as  the  representative  of  the  proprie- 
tary's family,  the  heirs  of  William  Penn,  had  a  just  and  perfect 
right  to  sell  and  dispose  of  this  lot  or  any  part  of  it  to  such  per- 
sons and  for  such  prices  as  he  thought  proper.  But  if  it  was,  as 
it  appears  to  be  established  by  the  clearest  and  most  indisputable 
proof,  by  the  concurrent  act  and  consent  of  his  father,  of  the 
first  purchasers,  and  all  subsequent  inhabitants  and  purchasers 
within  the  city  of  Philadelphia,  given  or  set  apart  in  trust  for 
public  uses  in  the  original  plan  of  the  city,  by  which  all  rights 
were  regulated  and  adjusted,  and  were  inherited,  transmitted  and 
enjoyed  ;  it  was  not  vacant  ground :  it  was  sacredly  appropriated : 
and  he  had  no  more  right  to  grant  away  a  foot  of  it  than  he  had 
to  sell  over  again  a  lot  assigned  to  a  first  purchaser  and  patented 
to  him.  This  assertion  that  it  was  so,  as  well  as  another  trans- 
action about  the  same  time,  which  will  be  afterwards  mentioned, 
may  lead  us  to  believe,  that  he  really  thought  he  had  the  right. 
But  his  assertions  that  it  belonged  to  him  as  vacant  or  as  a 
reservation,  are  no  evidence  of  the  fact:  and  have  no  weight 
against  the  conclusive  evidence  to  the  contrary.  And  whatever 
*may  have  been  his  view  of  the  matter,  we  have  evidence  r*iGQT 
in  this  cause,  that  the  knowledge  of  the  original  desti-  L 
nation  of  these  squares  continued  to  be  perfectly  well  known  te 
the  citizens  of  Philadelphia,  and  that  their  feelings  were  alive  to 
their  importance.  For  we  have  evidence,  (and  to  show,  that  this 
claim  of  the  proprietaries  was  not  acquiesced  in  by  the  public,  it 
is  good  evidence,)  that  he,  in  1751,  then  in  England  offered  a 
large  portion  of  the  residue  of  this  square,  and  actually  conveyed 
it  to  the  Pennsylvania  Hospital  by  patent,  calling  it  therein,  "  a 
square  of  vacant  land,"  and  alleging  that  it  was  "reserved" 
to  the  proprietaries.  This  grant  the  managers,  (Joshua  Crosby, 
Benjamin  Franklin,  Thomas  Bond  and  others,  of  the  most  intel- 
ligent and  influential  citizens  of  the  time,)  declined  receiving ; 
stating  the  place  to  be  unwholesome  and  not  adapted  to  their 
purpose,  yet  intimating  in  the  strongest  manner  which  their  rela- 
tion to  him  permitted,  that  he  had  no  right  to  dispose  of  it.  They 


483  SUPREME  COURT  [March  Term, 

(Commonwealth  t>.  Alburger.) 

say  in  their  remarks,  (which  with  their  letter  was  presented  to 
Thomas  Penn,)  after  noticing  its  unhealthiness  and  unsuitable- 
ness — "  besides,  as  it  is  part  of  a  square  allotted  by  the  late  Hon. 
Proprietary  for  public  uses,  as  the  old  inlipx  of  the  city  will  show, 
our  fellow  citizens  would  tax  us  with  injustice  to  them,  if  we 
should  accept  of  this  lot  by  a  grant  from  our  present  proprie- 
taries, in  such  terms  as  would  seem  to  imply  our  assenting  to 
their  having  a  right  to  the  remainder  of  the  square."  And  in 
their  letter  in  1752,  they  state  their  having  had  a  survey,  and 
found  it  unhealthy,  and  that  "  the  dissatisfaction  which  appeared 
and  still  subsists  among  our  fellow  citizens  on  the  proprietaries 
claiming  a  right  to  make  that  grant,  is  so  great,  that  if  there 
were  no  other  objection,  we  would  not  run  the  risk  of  increasing 
it."  And  again,  they  conclude,  "  we  shall  rather  endeavor  to 
purchase  a  lot  on  a  proper  situation  than  to  build  the  house  in  an 
inconvenient  place,  or  to  accept  of  any  lot  on  such  terms  as  we 
know  would  give  a  general  dissatisfaction."  This  is  ample  evi- 
dence that  the  citizens  of  Philadelphia,  at  that  day,  knew  the 
foundation  of  their  rights  to  these  lots ;  that  dissatisfaction 
already  prevailed,  and  would  be  increased  by  an  attempt  by  the 
proprietary  to  withdraw  them,  under  the  idea  that  they  were- 
vacant  or  reserved.  And  the  date  of  the  payment  shows,  that 
Thomas  Penn  never  received  the  consideration  money,  but  its 
payment  was  delayed  for  22  years  until  just  after  the  arrival  of 
his  nephew,  John  Penn,  personally  a  stranger  to  all  that  had 
occurred. 

There  is  another  example  of  a  similar  kind,  on  which  much  ob- 
scurity rests ;  but  it  does  appear  by  documents  referred  to  on 
the  trial  and  argument  here,  that  at  or  about  the  same  time  as 
the  grant  to  the  defendants,  the  proprietary  conveyed  the  origi- 
nal North-west  public  square  to  James  Hamilton,  whose  liberty 
lands  seemed  to  have  joined  it,  and  under  whom  it  has  been  since 
held.  But  it  also  appears,  that  ample  compensation  was  made 
for  it  to  the  public,  by  the  appropriation  of  another  square  by  the 
F*4841  ProPrietary'8  ""officers  a  little  further  to  the  westward 
which  lias  from  that  time  stood  in  lieu  of  it.  This  fact, 
so  far  as  it  goes,  is  strong  evidence  that  the  proprietary,  Thomas 
Penn,  and  his  officers,  considered  themselves  bound,  if  they  took 
away  one  square,  to  substitute  another  equally  valuable,  thereby 
recognizing  the  public  right.  The  opposite  square,  the  South- 
west, and  the  Centre  square  were  also  moved  the  same  distance 
westward ;  and  a  change  made  in  the  streets  running  north  and 
south,  beyond  Eighth  street ;  substituting  fourteen  streets  east  of 
Broad  street,  and  eight  west  of  Broad  street,  instead  of  eleven 
east  and  eleven  west  of  it,  as  they  formerly  stood.  It  is  possi- 
ble the  grant  of  the  original  North-west  square  to  Hamilton  made 


1836.]  OF  PENNSYLVANIA.  484 

(Commonwealth  v.  Alburger.) 

it  necessary  for  the  sake  of  uniformity,  to  shift  the  South-west 
and  Centre  squares  ;  though  another  motive  is  attributed  by  Read 
in  his  book.  But  whatever  may  have  been  the  reason,  the  public 
interests  were  not  injured  by  it ;  they  received  the  same  number 
of  streets  and  squares,  and  it  has  never  been  questioned  :  indeed 
it  is  only  in  one  book  we  find  any  notice  of  it.  (See  Read's,  ex- 
planation of  his  map.)  But  as  to  the  North-east  square,  the  one 
now  in  question,  no  change  of  situation  has  ever  been  made :  it 
stands  where  it  did  in .  the  original  plan  of  the  city ;  the  public 
uses  uninterrupted  from  1683  to  the  present  day,  except  so  far  as 
it  was  occupied  by  the  defendants. 

We  have  no  further  evidence  in  this  cause,  until  the  year  1.774, 
when  John  Read  (above  referred  to,)  made  a  map  of  the  city  and 
liberties,  in  which  the  lots,  streets  and  public  squares  of  the 
former,  and  the  site  and  boundaries  of  all  the  liberty  lands,  with 
various  particulars  relating  to  the  foundation  of  the  city,  and  the 
titles  of  first  purchasers,  prior  titles  of  the  Dutch,  Swedes,  &c. 
are  laid  down.  This  map  is  on  file  in  the  office  of  the  Secretary 
of  the  Commonwealth,  and  has  been  objected  to  as  not  being  evi- 
dence. It  exhibits  great  research  arid  industry.  Its  plan  of  the 
city  coincides  with  the  original  one,  in  laying  down  the  public 
squares,  and  marking  them  as  given  to  public  uses.  His  book, 
called  an  explanation  of  his  map,  which  is  denied  to  have  been 
given  in  evidence,  exhibits  the  same  labor  ;  but  the  controversial 
spirit  pervading  it,  detracts  from  the  weight  it  would  otherwise 
possess,  as  an  authority.  I  lay  no  stress  upon  either  of  them  in 
the  decision  of  this  case. 

The  next  period  at  which  we  find  any  evidence,  is  the  year 
1776,  when  it  appears  the  German  Lutheran  Congregation  pur- 
chased of  the  proprietary,  a  lot  of  ground  lying  westward  of  the 
south-east  public  square ;  and  John  Lukens  made  a  survey  for 
them  returned  into  the  office,  in  which  he  marks  the  ground  east- 
ward of  them  as  "  A  public  square."  As  evidence  to  affect  the 
defendant's  title  directly,  this  would  not  be  operative,  because  it 
was  long  after  the  date  of  their  grant :  but  as  evidence  of  the 
proprietary's  officer,  the  Surveyor  General  under  them,  that  this 
ground  was  reputed  in  the  Land  office,  to  be  of  that  character  at 
that  day,  it  is  evidence.  General  reputation,  is  evidence  of  a 
public  right,  1  Phill.  Ev.  205  ;  and  it  goes  *also  to  show  r^ioc-i 
that  the  claim  of  the  proprietary  to  treat  this  lot  as  *- 
vacant,  was  not  acquiesced  in. 

But  it  is  said  that  the  Commonwealth  after  the  revolution, 
when  they  succeeded  to  the  domains  and  rights  of  the  proprie- 
taries, deemed  this  square  to  belong  to  them,  and  treated  a 
portion  of  it  as  such :  and  hence  it  is  argued,  that  if  the  com- 
monwealth as  representative  of  the  proprietaries,  had  this  right, 


485  SUPREME  COURT  [March  Term, 

(Commonwealth  e.  Alburger.) 

the  proprietaries  had  it  before  them.  The  facts  appear  to  be, 
that  the  only  interest  the  commonwealth  had  in  it  was  a  powder 
magazine  erected  on  a  part  of  it,  which  the  parol  evidence  shows 
was  there  in  1784,  and  afterwards :  and  by  a  resolution  of  the 
legislature  in  1791,  they  directed  the  possession  of  it  to  be  de- 
livered to  the  corporation  of  the  city,  for  storing  oil  for  lamps, 
until  otherwise  disposed  thereof.  This  shows  no  more  than  that 
the  build  in  ij  belonged  to  the  commonwealth,  who  had  probably 
erected  it  during  the  war,  and  that  they  held  it  at  their  disposal. 
But  there  is  no  evidence  that  they  did  not  build  and  occupy  it 
with  the  consent  of  the  city :  and  as  the  city  occupied  all  the  rest 
for  hay-scales,  or  paving  stones,  the  presumption  would  be  that 
they  did.  The  use  as  a  powder  magazine  was  a  public  use,  of 
paramount  importance  at  that  time ;  and  if  the  commonwealth 
erected  the  building,  they  had  the  control  of  it.  But  there  is  no 
evidence  that  they  claimed  a  right  to  the  square  itself,  or  any 
part  of  it,  as  their  exclusive  property,  by  succession  to  the  pro- 
prietaries ;  or  attempted  to  divert  it  from  the  purposes  for  which 
it  was  first  set  apart.  Their  temporary  occupancy  was  for  a 
public  use,  and  so  far  consistent  with  the  original  grant  by  Wil- 
liam Penn :  as  was  that  of  the  city  afterwards  for  storing  oil,  and 
of  the  remainder,  (except  the  burying  ground,)  for  hay-scales 
and  paving  stones,  taking  into  the  view  the  extent  of  the  city 
then.  The  magazine  was  long  since  removed,  and  no  claim  or 
pretension  made  by  the  commonwealth  to  sell  or  dispose  of  the 
ground,  but  it  passed  into  the  occupancy  of  the  city  authorities, 
its  proper  guardians  and  managers.  The  commonwealth  in  all 
emergencies  of  peace  or  war,  never  thought  of  selling  the  public 
squares  of  the  city  ;  though  the  vacant  city  lots  have  been  sold 
under  its  authority. 

When  property  is  dedicated  or  transferred  to  public  use,  the 
use  is  indefinite,  and  may  vary  according  to  circumstances.  The 
public  not  being  able  themselves  to  manage  or  attend  to  it,  the 
care  and  employment  of  it  must  devolve  upon  some  local  author- 
ity or  body  corporate  as  its  guardian,  who  are  in  the  first  in- 
stance to  determine  what  use  of  it  from  time  to  time,  is  best 
calculated  for  the  public  interest,  subject  as  charitable  uses  are, 
to  the  control  of  the  laws  and  the  courts,  in  case  of  any  abuse  or 
misapplication  of  the  trust.  The  corporation  has  not  the  right 
to  these  squares  so  as  to  be  able  to  sell  them,  or  employ  them  in 
a  way  variant  from  the  object  for  which  they  were  designed ;  but 
they  may  allow  them  to  remain  unimproved  or  unoccupied,  while 
f  *4861  lmilfl'nfi3  are  too  remote  to  render  it  proper.  *They 
may  afterwards  use,  or  permit  them  to  be  used  for  de- 
positories of  public  property,  such  as  paving  stones,  or  offals  of 
the  city — for  hay-scales — for  a  powder  magazine — for  a  public 


1836.]  OF  PENNSYLVANIA.  486 

(Commonwealth  v.  Alburger.) 

burying  ground ;  and  finally,  Avhen  a  close  population  surrounds 
them,  for  recreation  and  ventilation,  ornament  and  thoroughfares 
of  the  city.  All  these  are  public  uses,  and  have  been  employed 
in  the  different  epochs  of  the  city.  In  the  same  manner  as  to 
the  public  landings  granted  to  the  city  by  the  founder,  and  others 
in  the  adjoining  districts,  they  were  for  a  time  unwharfed,  then 
wharfed  and  used  for  landing  of  passengers,  and  of  lumber,  after- 
wards for  the  cording  of  wood,  and  now  several  of  the  most  valu- 
able let  out  for  steamboat  landings  and  other  commercial  purposes. 
This  has  been  the  uniform  practice,  and  is  consistent  with  the 
objects  for  Avhich  they  were  bestowed.  But  the  defendants'  use 
of  this  ground  was  not  a  public  use  ;  it  was  confined  to  one  cor- 
poration, and  devoted  to  the  interment  of  their  dead,  to  the  ex- 
clijsion  of  the  rest  of  the  community.  In  addition  to  which,  in 
the  present  state  of  the  city,  its  appropriation  for  a  burial  place 
even  for  public  purposes,  would  be  objectionable. 

We  are  therefore  of  opinion,  that  the  fact  of  the  dedication  of 
this  square  to  public  uses  by  the  first  proprietor  and  founder  of 
Philadelphia,  is  too  clear  to  admit  of  any  dispute — that  nothing 
has  ever  been  done  on  his  part,  or  by  the  commonwealth  or  city 
since,  that  in  the  least  impairs  this  vested  right  of  the  city  in  it ; 
that  the  act  of  Thomas  Penn  in  1741,  in  undertaking  to  sell  a 
part  of  it  to  a  religious  society  as  their  exclusive  property  and 
for  their  exclusive  use,  under  the  pretence  of  its  being  vacant 
ground,  was  without  authority,  and  passed  no  title  whatever  to 
the  grantees.  If  he  has  conceived  he  might  do  so,  he  was  mis- 
taken in  his  rights :  and  the  corporation  for  whose  use  it  was 
taken,  then  and  ever  since  of  the  highest  respectability  of  charac- 
ter, have  notwithstanding,  in  receiving  this  grant,  had  the  misfor- 
tune to  acquire  property,  to  which  their  grantor  had  no  title,  the 
ground  having  long  before  been  granted  away  by  his  ancestor  to 
the  use  of  others,  who  held  the  prior  right. 

The  warrant  and  survey  and  patent  therefore  conveyed  no  title 
to  the  defendants.  But  it  has  been  contended,  1st,  that  they  are 
protected  by  the  lapse  of  time  ;  and  2d,  the  equity  of  their  case 
has  been  brought  in  to  aid  this  defence. 

1.  It  is  well  settled  that  lapse  of  time  furnishes  no  defence  for 
an  encroachment  on  a  public  right ;  such  as  the  erecting  of  an 
obstruction  on  a  street  or  public  square.  This  doctrine  has  very 
recently  been  examined  by  this  Court  in  the  case  of  The  Common- 
wealth v.  M' Donald,  (16  S.  &  R.  395,)  which  was  an  indictment 
for  erections  on  Water  street,  in  the  city  of  Pittsburg  ;  and  in 
Jluny  v.  Shoneberyerf  which  was  an  action  for  prostrating  build- 
ings in  the  town  of  Petersburg.  In  the  former,  Mr.  Justice  Dun- 

*  2  Watts,  23. 


486  SUPREME  COURT  [March  Term, 

(Commonwealth  t>.  Alburger.) 

can,  in  his  charge  to  the  jury  says,  "  on  an  indictment  for  this 
T*4S71  encroachment,  the  statute  *does  not  run:  no  length  of 
time  protects."  Arid  again  in  delivering  the  opinion  of 
the  Court,  "  to  presume  a  grant,  would  be  presumption  run  mad : 
it  would  be  against  the  positive  proof  in  the  cause  :  whatever  the 
defendant's  grants  are,  he  has  shown,  and  they  exclude  all  pre- 
sumption of  others.  All  the  cases  of  presumption  have  been  for 
private  nuisances  and  in  civil  actions."  "No  length  of  time  will 
legalize  a  public  nuisance — unless  there  is  a  limit  to  prosecutions 
by  statute,  there  is  no  limit.  Public  rights  cannot  be  destroyed 
by  long  continued  encroachments :  at  least  the  party  who  claims 
the  exercise  of  any  right  inconsistent  with  the  free  enjoyment  of 
a  public  casement  or  privilege,  must  put  himself  on  the  ground 
of  prescription,  unless  he  has  a  grant  or  some  valid  authority 
from  the  government."  The  case  of  Runy  v.  Shoneberyer,  was 
the  case  of  a  public  square,  and  the  language  of  Mr.  Justice 
Rogers,  in  delivering  the  opinion  of  the  Court  is  equally  positive, 
and  is  appropriate  to  the  points  before  us.  "  It  is  admitted," 
says  he,"  that  the  erection  of  a  public  building  on  a  street,  (Com- 
inoincealth  v.  M' Donald  ^  is  a  public  nuisance  :  but  a  distinction 
has  been  attempted  between  a  street  and  a  square.  In  this  state 
there  are  few  ancient  towns  in  which  squares  such  as  this  do  not 
form  part  of  the  plan.  They  are  generally  located  at  the  inter- 
section of  the  streets,  and  are  intended  as  sites  for  the  erection 
of  buildings  for  the  use  of  the  public,  such  as  court  houses,  mar- 
ket houses,  school  houses  and  churches ;  sometimes  they  are  de- 
signed for  ornament,  and  at  others  they  are  intended  for  the 
promotion  of  the  health  of  the  inhabitants,  by  admitting  a  free 
circulation  of  air.  The  squares  as  well  as  the  streets,  and  for 
the  same  reason,  are  placed  under  the  superintendence  of  the 
local  authorities,  who  have  full  power  to  regulate  them  so  as 
more  effectually  to  enforce  the  purposes  to  which  they  have  been 
dedicated.  Public  squares,  unlike  commons,  are  not  intended  for 
the  exclusive  use  of  the  citizens  of  the  city  or  borough  where 
they  arc  situated,  but  are  designed  for  the  comfort  and  conveni- 
ence of  strangers  in  the  pursuit  either  of  business  or  pleasure. 
It  would  be  an  abuse  of  the  grant  to  attempt  to  appropriate  the 
enjoyment  of  them  to  ^citizens  in  exclusion  of  others."  "  The 
learned  Judge  who  ruled  this  cause,  expressed  an  opinion  that  if 
a  person  was  suffered  to  build  a  house  on  one  of  the  beautiful 
squares  in  the  city  of  Philadelphia,  and  was  permitted  to  remain 
there  twenty-one  years,  his  title  would  be  good.  But  this  de- 
pends on  the  question  whether  the  building  was  a  public  or 
private  nuisance.  The  case  put  as  an  illustration  by  the  Court, 
we  will  determine  when  it  arises ;  but  I  must  be  permitted  to  ob- 
serve, that  I  have  but  little  faith  in  the  correctness  of  the  opinion. 


183C.]  OF  PENNSYLVANIA. 

t 

(Commonwealth  v.  Alburger.) 

For  although  the  city  has  a  qualified  property  in  the  ground,  yet 
the  corporation  is  but  a  trustee  for  the  public,  for  whose  use  and 
benefit  the  squares  were  left  open.  The  enjoyment  of  them  is 
free,  as  things  of  common  right,  to  all  the  citizens  of  the  com- 
monwealth, subject  however,  as  I  before  observed,  to  such 
Regulations  and  restrictions  affecting  all,  as  are  not  in-  P^IOQ-I 
consistent  with  the  grant.  And  in  this  respect  I  am  at 
a  loss  to  see  any  difference  between  a  street  and  a  square.  If  the 
erection  of  a  building  on  a  square  is  a  common  nuisance,  the  plain- 
tiff can  acquire  no  right  by  long-continued  possession." 

These  principles  are  of  universal  application,  and  control  the 
present  case  as  well  as  others.  There  is  no  room  for  presumption 
since  the  grant  itself  is  shown  and  proves  defective ;  and  if  there 
were  no  grant  shown,  presumption  will  not  be  made  to  support  a 
nuisance,  by  encroachment  on  a  public  right ;  and  no  statute  of 
limitations  bars  the  proceeding  by  indictment  to  abate  it.  These 
principles,  indeed,  prevade  the  laws  of  the  most  enlightened  na- 
tions as  well  as  our  own  code,  and  are  essential  to  the  protection 
tion  of  public  rights,  which  would  be  gradually  frittered  away,  if 
the  want  of  complaint  or  prosecution  gave  the  party  a  right.  In- 
dividuals may  reasonably  be  held  to  a  limited  period  to  enforce 
their  right  against  adverse  occupants,  because  they  have  interest 
sufficient  to  make  them  vigilant.  But  in  public  rights  of  property, 
each  individual  feels  but  a  slight  interest,  and  rather  tolerates 
even  a  manifest  encroachment,  than  seeks  a  dispute  to  set  it  right ; 
Commonwealth  v.  Passmore,  (1  Serg.  &  Rawle,  220.)  And  of 
this  the  present  case  is  a  proof,  where  the  respectable  character 
of  the  defendants  as  a  corporation  and  individuals,  and  the  pur- 
pose for  which  they  used  the  ground,  would  inspire  the  greatest 
reluctance  even  in  those  whose  duty  it  strictly  was,  to  proceed  to 
legal  measures  against  them.  This  the  tardiness  of  the  city's 
proceedings  manifests. 

As  to  the  equity  set  up  by  the  defendants,  it  would  not  be 
proper  perhaps,  to  examine  it,  because  we  have  not  the  means,  if 
it  existed,  to  award  a  compensation  for  it,  or  preclude  the  city 
from  their  right.  It  does,  however,  appear  by  the  evidence,  that 
the  defendants  in  1782,  were  aware  that  this  square  was  "one 
of  those  reserved  in  the  original  plan  of  the  city  of  Philadelphia, 
for  the  benefit  of  the  citizens  thereof."  That  prior  to  this  time 
th  y  had  "  encroached  on  other  lots  within  the  square,"  for  the 
purpose  of  interment,  and  in  that  year  asked  for  three  acres  and 
three-quarters  and  thirty-one  perches  and  five-tenths  of  a  perch, 
including  the  one  acre  eight  perches  and  six-tenths  patented  by 
the  proprietary;  but  the  legislature  did  not  grant  the  request. 
It  further  appears  that  in  March  1800,  the  city  brought  an  eject- 
ment to  recover  the  ground  they  occupied,  and  in  February  1801, 


488  SUPREME  COURT  [March  Term, 

(Commonwealth  t>.  Alburger.) 

an  agreement  was  made  with  a  committee  of  the  city  corporation, 
by  which  the  latter  agreed  to  aid  the  former  in  obtaining  a  grant 
of  a  vacant  lot  on  Mulberry  street,  between  Fifth  and  iSixth 
streets  from  Schuylkill ;  in  consideration  of  which  the  defendants 
agreed  they  would  on  obtaining  it,  take  down  and  remove  the 
fence  surrounding  the  part  in  their  possession,  and  put  up  a  hand- 
some pale  fence  round  that  part  in  which  bodies  were  interred, 
and  would  within  ten  years  remove  that  fence  and  inclose  only 
that  part  for  which  they  had  a  patent,  leaving  the  rest  open  and 
r*48Q1  *n  Possessi°n  *°f  the  city:  no  interments  to  be  made  in 
future  on  any  other  part  of  the  square ;  and  the  right 
of  either  party  to  the  part  patented  not  to  be  affected  by  the 
agreement.  The  defendants  sent  a  committee  to  the  legislature, 
of  which  Mr.  Peltz  was  one,  who  says  they  stated  as  reasons  for 
the  application  that  a  suit  had  been  brought,  and  if  persisted  in, 
the  congregation  would  probably  lose  the  ground,  and  have  no 
place  for  burying  the  dead.  The  legislature  by  act  of  19th  of 
Feb.  1801,  granted  them  a  lot,  described  as  containing  396  feet 
by  288,  for  the  purposes  of  a  burial  place  and  site  of  a  charity 
school;  and  by  the  act  of  14th  of  April  1835,  authorized  them 
to  sell  such  part  as  they  thought  proper;  the  proceeds  to  be  ap- 
plied to  the  repair  of  their  buildings  on  Race  street.  The  eject- 
ment of  the  city  was  marked  'settled'  in  October  1801,  and  dis- 
continued in  November,  another  agreement  having  been  made 
between  the  city  and  the  defendants,  dated  20th  September,  1801, 
(a  copy  of  which  was  proved  by  Mr.  Peltz,)  which  stipulates  for 
the  immediate  surrender  of  the  possession ;  makes  provision  for 
paying  for  the  new  fence;  alters  the  time  of  taking  it  down  and 
putting  it  up  round  the  patented  part  to  15  years;  provides  for 
immediate  surrender  of  all  on  which  there  were  no  interments, 
and  adds  that  they  will  erect  no  buildings  on  the  patented  part, 
and  that  length  of  possession  shall  not  operate  as  a  bar  to  the 
claim  of  the  city  on  any  part  thereof  in  any  suit  to  be  thereafter 
instituted  for  that  purpose,  but  that  the  compromise  should  be 
without  prejudice  to  the  rights  of  either  party :  and  the  defend- 
ants took  a  lease  of  the  same  date,  of  the  unpatented  part  for  15 
years  at  the  rent  of  5  shillings.  In  March,  1819,  they  gave  up 
the  part  held  under  this  lease. 

This  evidence  goes  far  to  rebut  the  equity  the  defendants  might 
otherwise  have  from  payment  of  jt'50,  and  the  interest  from  1741. 
They  have  had  the  exclusive  occupation  for  the  purpose  of  inter- 
ment ;  a  use  it  is  believed  equivalent  to  the  interest  of  their 
money,  if  not  in  later  periods  a  source  of  revenue  to  the  church. 
In  addition  to  this,  they  had  in  1801,  the  gift  of  a  large  and  valu- 
able lot  from  the  legislature,  one  of  the  vacant  city  lots,  which 
has  been  growing  in  value  since,  and  the  grant  of  which  was 


1836.]  OF  PENNSYLVANIA. 

(City  of  Philadelphia  v.  Davis.) 

aided  by  the  city,  and  it  would  seem  by  the  evidence  of  Mr. 
Peltz,  was  given  as  a  compensation  for  the  ground  they  occupy  ; 
and  if  that  were  not  the  case,  yet  it  takes  away  any  ground  of 
equity  in  their  claim.  As  to  want  of  notice,  that  cannot  be  sus- 
tained ;  because  the  evidence  of  the  appropriation  of  the  lot  was 
of  record  in  the  surveyor-general's  office,  for  the  information  of 
those  who  chose  to  apply,  and  of  which  all  concerned  were  bound 
to  take  notice,  and  in  or  before  1782,  it  was  known  to  the  de- 
fendant's predecessors.  More  might  be  added  on  this  copious  sub- 
ject, but  it  would  extend  this  opinion  into  needless  prolixity.  We 
are  of  opinion  that  the  indictment  is  supported  by  the  evidence, 
and  that  the  motion  for  a  new  trial  should  be  denied.  . 

New  trial  refused. 

Cited  by  Counsel,  5  Wharton,  334 ;  2  Barr,  242,  252 ;  3  Id.  206 ;  7  Id. 
355  ;  1  Jones,  200 ;  7  P.  F.  Smith,  109 ;  Brightly,  72. 
Cited  by  the  Auditor,  6  Casey,  440. 
Cited  by  the  Court  below,  1  Jones,  446. 
Cited  by  Read,  J.  at  Nisi  Prius,  7  P.  F.  Smith,  277. 
Cited  by  the  Court,  4  Harris,  94 ;  7  P.  F.  Smith,  220. 
See  also  ante  25  ;  2  Harris,  186  ;  9  Casey,  210. 


[*  PHILADELPHIA,  APRIL  28,  1836.]  [*490] 

The  CITY  OF  PHILADELPHIA  v.  DAVIS  and  Others. 

One  having  large  real  and  personal  estates,  and  whose  nearest  relations 
were  a  brother  and  the  children  of  a  brother  and  sister,  made  his  will, 
dated  in  February,  1830,  in  which  were  the  following  provisions  :  (1.) 
He  devised  a  house  and  lot  of  ground  in  France  to  his  brother  and  one 
of  his  nieces,  during  the  life  of  his  brother,  and  thereafter  one  moiety  to 
his  said  niece,  and  the  other  moiety  to  six  children  of  his  said  brother. 
(2.)  He  gave  legacies  of  different  sums  to  his  brother  and  nephews  and 
nieces  ;  some  of  the  legacies  being  to  trustees  for  the  separate  use  of 
married  nieces.  (3.)  He  then  gave  the  residue  of  his  estate  to  "the 
Mayor,  Aldermen  and  citizens  of  Philadelphia,"  in  trust  for  the  estab- 
lishment of  a  college  for  orphans,  and  other  public  and  charitable  pur- 
poses. In  December,  1830,  he  made  a  codicil  reciting  the  will,  and  that 
he  had,  since  the  execution  thereof,  purchased  certain  real  estate  "all 
which  as  well  as  any  real  estate  that  I  may  hereafter  purchase,"  he 
added,  "  it  is  my  wish  and  intention  to  pass  by  the  said  last  will :  now  I 
do  hereby  republish  the  foregoing  will  and  testament,  dated,  &c.  and  do 
confirm  the  same  in  all  particulars."  In  June,  1831,  he  made  another 
codicil,  reciting,  that  since  the  execution  of  the  will,  he  had  purchased 
other  real  estate  "all  which  as  well  as  any  real  estate  that  I  may  here- 
after purchase,  it  is  my  intention  to  pass  by  said  will : ' '  and  then  reciting 
that  he  had  purchased  certain  land  near  Philadelphia,  he  declared  it  to 
be  his  intention  that  the  orphan  house,  &c.  should  be  erected  upon  this 
land,  instead  of  the  spot  directed  in  his  will,  &c.  Between  the  date  of 


490  SUPREME  COURT  [March  Term, 

(City  of  Philadelphia  «.  Davis.) 

this  last  codicil  and  his  death,  he  purchased  certain  other  real  estate. 
The  legacies  to  the  next  of  kin  were  paid  by  the  executors  about  seven 
months  after  the  death  of  the  testator.  Ejectments  were  instituted  by 
the  heirs,  against  the  City  of  Philadelphia,  to  recover  the  after-acquired 
real  estate,  which  were  decided  in  favor  of  the  plaintiffs,  and  possession 
was  delivered  accordingly.  In  ejectment  brought  by  the  city,  to  recover 
back  the  same  real  estate,  it  was  held  that  it  was  not  a  case  in  which 
the  heirs  were  bound  to  elect  between  the  after-acquired  real  estate  and 
the  legacies,  and  therefore  that  the  city  was  not  entitled  to  recover. 

THIS  was  an  action  of  ejectment  instituted  by  the  Mayor,  Al- 
dermen and  Citizens  of  Philadelphia,  against  Benjamin  Davis, 
Franchise  Fenelon  Vidal,  Etiene  Girard,  John  Hemphill  and 
Maria  his  wife,  John  Y.  Clark  and  Henrietta  his  wife,  and  John 
Hemphill  and  Mark  Richards,  trustees  of  Caroline  Haslam,  to 
recover  possession  of  a  lot  of  ground  situate  at  the  north-east  cor- 
ner of  Coates'  and  John  streets,  in  the  district  of  Spring  Garden 
and  County  of  Philadelphia. 

The  action  was  tried  before  Mr.  Justice  Kennedy,  at  a  Court  of 
Nisi  Prius,  held  at  Philadelphia  on  the  16th  of  February,  1835. 
when,  after  the  evidence  had  been  gone  through  on  the  part  of  the 
plaintiffs,  the  following  agreement  was  signed  by  the  counsel : 

"It  is  agreed  that  the  facts  stated  on  the  judge's  notes,  be  con- 
sidered as  in  the  nature  of  a  special  verdict,  and  the  points  of  law 
growing  out  of  these  facts  as  all  reserved.  If  the  Court  shall  be 
r*4Q11  °*  *°P""on  f°r  the  plaintiff  as  against  all  or  any  of  the 
-*  defendants,  then  judgment  to  be  entered  for  the  plain- 
tiffs for  the  whole  or  an  undivided  part,  and  against  all  or  some  of 
the  defendants,  according  to  that  opinion.  If  the  Court  shall  be 
of  opinion  with  the  defendants,  or  any  of  them,  then  judgment  to 
be  entered  for  the  defendants,  or  such  of  them  with  whom  the 
Court  shall  be  of  opinion :  and  power  reserved  to  the  Court  to 
make  any  inference  of  fact  from  the  evidence,  which  they  may  de- 
cide a  jury  might  properly  make — to  order  a  new  trial  it  from  any 
cause  they  shall  think  it  necessary — or  if  they  shall  be  divided 
equally  in  opinion." 

The  material  facts  of  the  case  were  as  follows  : 

•Stephen  Girard  of  the  City  of  Philadelphia,  died  on  the  26th 
day  of  December,  1831,  seized  or  possessed  of  large  real  and  per- 
sonal estate,  and  effects,  and  having  made  his  last  will  in  writing, 
dated  the  16th  day  of  February,  1830,  and  two  codicils  thereto, 
one  dated  the  26th  day  of  December,  1830,  and  the  other  dated 
the  20th  day  of  June,  1831.  He  left  the  following  heirs  or  next 
of  kin,  viz. 

1st.  Etienne  Girard,  a  brother  of  the  whole  blood ; 
2d.  Three  nieces,  children  of  John  Girard,  a  deceased  brother  of 

the  whole  blood,  viz. 

1st.  Antoinette,  married  to  John  Hemphill. 


1836.]  OF  PENNSYLVANIA.  491 

(City  of  Philadelphia  t>.  Davis.) 
2d.  Henrietta,  married  to  J.  Y.  Clark. 
3d.  Caroline,  married  to  John  B.  Haslam. 
3d.  Framboise  Fenelon  Vidal,  othenvise  called  Victoire  Fenelon, 

the  daughter  of  Sophia  Girard  Capayron,  a  deceased  sister  of 

the  whole  blood. 

By  the  will  of  Mr.  Girard,  after  various  legacies  of  considera- 
ble sums  of  money  to  different  charitable  institutions  and  individ- 
uals, he  made  the  following  devises  and  bequests : 

"  IX.  I  give  and  devise  my  house  and  lot  of  ground  thereto 
belonging,  situate  in  rue  Ramouet  aux  Chartrons,  near  the  city  of 
Bordeaux,  in  France,  and  the  rents,  issues,  and  profits  thereof,  to 
my  brother,  Etienne  Girard,  and  my  niece  Victoire  Fenellon, 
(daughter  of  my  late  sister  Sophia  (jirard  Capayron,)  (both  re- 
siding in  France,)  in  equal  moieties  for  the  life  of  my  said 
brother,  and,  on  his  decease,  one  moiety  of  the  said  house  and  lot 
to  my  said  niece  Victoire,  and  her  heirs  forever,  and  the  other 
moiety  to  the  six  children  of  my  said  brother,  namely,  John  Fabricius, 
Marguerite,  Ann  Henrietta,  Jean  August,  Marie,  and  Madelaine 
Henriette,  share  and  share  alike,  (the  issue  of  any  deceased  child, 
if  more  than  one,  to  take  amongst  them  the  parent's  share)  and 
their  heirs  forever. 

*X.  I  give  and  bequeath  to  my  brother,  Etienne  r^ioon 
Girard,  the  sum  of  five  thousand  dollars,  and  the  like 
sum  of  five  thousand  dollars  to  each  of  his  six  children  above 
named :  if  any  of  the  said  children  shall  die  prior  to  the  receipt 
of  his  or  her  legacy  of  five  thousand  dollars,  the  said  sum  shall  be 
paid,  and  I  bequeath  the  same  to  any  issue  of  such  deceased  child, 
if  more  than  one,  share  and  share  alike. 

XI.  I  give  and  bequeath  to  my  said  niece,  Victoire  Fenellon, 
the  sum  of  five  thousand  dollars. 

XII.  I  give  and  bequeath  absolutely  to  my  niece,  Antoinetta, 
now  married  to  Mr.  Hemphill,  the  sum  of  ten  thousand  dollars, 
and  I  also  give  and  bequeath   to  her  the   sum  of  fifty  thousand 
dollars,  to  be  paid  over  to  a  trustee  or  trustees  to  be  appointed 
by  my  executors,  which  trustee  or  trustees  shall  place  and  con- 
tinue the  said  sum  of  fifty  thousand  dollars  upon  good  security, 
and  pay  the  interest*  and  dividends  thereof  as  they  shall  from 
time  to   time  accrue,  to  my  said  niece   for   her  separate   use, 
during  the  term  of  her  life  ;  and  from  and  immediately  after  her 
decease,  to  pay  and  distribute  the  capital  to  and  among  such  of 
her  children  and  the  issue  of  deceased  children,  and  in  such  parts 
and  shares  as  she  the  said  Antoinetta,  by  any  instrument  under 
her  hand  and  seal,  executed  in   the  presence  of  at  least  two 
credible   witnesses,   shall   direct  and   appoint,   and   for  default 
of  such  appointment,  then  to  and  among  the  said  children  and 
issue  of  deceased  children  in  equal  shares  ;   such  issue  of  de- 


492  SUPREME  COURT  [March  Term, 

(City  of  Philadelphia  r.  Davis.) 

ceased  children,  if  more  than  one,  to  take  only  the  share  which 
their  deceased  parent  would  have  taken  if  living. 

XIII.  I   give    and   bequeath   unto   my   niece,  Carolina,  now 
married  to  Mr.  Ilaslam,  the  sum  of  ten  thousand  dollars,  to  be 
paid  over  to  a  trustee  or  trustees  to  be  appointed  by  my  execu- 
tors, which  trustee  or  trustees  shall  place  and  continue  the  said 
money  upon  good  security,  and  pay  the  interest  and  dividends 
thereof  from  time  to  time  as  they  shall  accrue,  to  my  said  niece, 
for  her  separate  use,  during  the  term  of  her  life;-  and  from  and 
immediately  after  her  decease,  to  pay  and  distribute  the  capital 
to  and  among  such  of  her  children  and  issue  of  deceased  children, 
and  in  such  parts  and  shares,  as  she  the  said  Carolina,  by  any 
instrument  under  her  hand  and  seal,  executed  in  the  presence  of 
at  least  two  credible  witnesses,  shall  direct  and  appoint,  and  for 
default  of  such  appointment,  then  to  and  among  the  said  children, 
and  issue  of  deceased  children,  in  equal  shares,  such  issue  of  de- 
ceased children,  if  more  than  one,  to  take  only  the  share  which 
the  deceased  parent  would  have  taken  if  living ;  but  if  my  said 
niece,  Carolina,  shall  leave  no  issue,  then  the  said  trustee  or 
trustees  on  her  decease,  shall  pay  the  said  capital  and  any  interest 
accrued  thereon,  to  and  among  Caroline  Lallemand,  (niece  of  the 
said   Carolina,)    and   the   children   of  the  aforesaid  Antoinette, 
Hemphill,  share  and  share  alike. 

XIV.  I  give  and  bequeath  to  my  niece  Henrietta,  now  mar- 
ried to  Dr.  Clark,  the  sum  of  ten  thousand  dollars ;  and  I  give  and 
F*4Qm     bequeath  *to  her  daughter  Caroline,  (in  the  last  clause 

above  named,)  the  sum  of  twenty  thousand  dollars — the 
interest  of  the  said  sum  of  twenty  thousand  dollars,  or  so  much 
thereof  as  may  be  necessary,  to  be  applied  to  the  maintenance 
and  education  of  the  .said  Caroline  during  her  minority,  and  the 
principal  with  any  accumulated  interest,  to  be  paid  to  the  said 
Caroline,  on  her  arrival  at  the  age  of  twenty-one  years." 

Then  after  certain  other  legacies  and  devises,  he  gave  all  the 
residue  and  remainder  of  his  real  and  personal  estate,  wheresoever 
situate,  to  "  the  Mayor,  Aldermen  and  Citizens  of  Philadelphia," 
in  trust  for  certain  public  purposes,  and  appointed  five  persons 
executors  of  his  will.  * 

The  two  codicils  to  the  will,  were  as  follows : 

''Whereas,  1,  Stephen  Girard,  the  testator  named  in  the  fore- 
going will  and  testament,  dated  the  sixteenth  day  of  February, 
eighteen  hundred  and  thirty,  have,  since  the  execution  thereof, 
purchased  several  parcels  and  pieces  of  real  estate,  and  have  built 
sundry  messuages,  all  which,  as  well  as  any  real  estate  that  I 
may  hereafter  purchase,  it  is  my  wish  and  intention  to  pass  by 
the  said  will :  now,  I  do  hereby  republish  the  foregoing  last  will 
and  testament,  dated  February  16th,  1830,  and  do  confirm  the 


1886.]  OF  PENNSYLVANIA.  493 

(City  of  Philadelphia  v.  Davis.) 

same  in  all  particulars :  In  witness,  I,  the  said  Stephen  Girard, 
set  my  hand  and  seal  hereunto,  the  twenty-fifth  day  of  December, 
eighteen  hundred  and  thirty." 

"  Whereas,  I,  Stephen  Girard,  the  testator  named  in  the  fore- 
going will  and  testament,  dated  February  16th,  1830,  have,  since 
the  execution  thereof,  purchased  several  parcels  and  pieces  of 
land  and  real  estate,  and  have  built  sundry  messuages,  all  which, 
as  well  as  any  real  estate  that  I  may  hereafter  purchase,  it  is 
my  intention  to  pass  by  said  will ;  and  whereas,  in  particular,  I 
have  recently  purchased  from  Mr.  William  Parker,  the  Mansion 
House,  out-buildings,  and  forty-five  acres  and  some  perches  of 
land,  called  Peel  Hall,  on  the  Ridge  Road,  in  Penn  Township : 
now,  I  declare  it  to  be  my  intention,  and  I  direct,  that  the  orphan 
establishment,  provided  for  in  my  said  will,  instead  of  being  built 
as  therein  directed  upon  my  square  of  ground  between  High  and 
Chestnut  and  Eleventh  and  Twelfth  streets  in  the  City  of  Phila- 
delphia, shall  be  built  upon  the  estate  so  purchased  from  Mr.  W. 
Parker,  and  I  hereby  devote  the  said  estate  to  that  purpose, 
exclusively,  in  the  same  manner  as  I  had  devoted  the  said 
square,  hereby  directing  that  all  the  improvements  and  arrange- 
ments for  the  said  orphan  establishment  prescribed  by  my  said 
will  as  to  said  square  shall  be  made  and  executed  upon  the  said 
estate,  just  as  if  I  had  in  my  will  devoted  the  said  estate  to  said 
purpose — consequently,  the  said  square  of  ground  is  to  consti- 
tute, *and  I  declare  it  to  be  a  part  of  the  residue  and  r*4Q/n 
remainder  of  my  real  and  personal  estate,  and  given  and 
devised  for  the  same  uses  and  purposes  as  are  declared  in  section 
twenty,  of  my  will,  it  being  my  intention  that  the  said  square  of 
ground  shall  be  built  upon  and  improved  in  such  a  manner  as  to 
secure  a  safe  and  permanent  income  for  the  purposes  stated  in 
said  twentieth  section.  In  witness  whereof,  I,  the  said  Stephen 
Girard,  set  my  hand  and  seal  hereunto,  the  twentieth  day  of 
June,  eighteen  hundred  and  thirty-one." 

The  property  which  was  the  subject  of  the  present  suit,  was 
purchased  by  Mr.  Girard,  on  the  2nd  of  November,  1831,  for  the 
consideration  of  $1700.  Several  other  parcels  of  real  estate  were 
purchased  by  him  after  the  date  of  the  last  codicil ;  the  conside- 
ration paid  for  which  was  $64,618  55.  A  power  of  attorney  was 
executed  in  France,  on  the  16th  of  March,  1832,  by  Etienne 
Girard  to  Jean  Fabricius  Girard  and  Jean  Auguste  Girard,  to 
appear  for  him  in  respect  to  this  succession  and  to  take  all  such 
measures  as  might  be  expedient.  This  instrument  was  minute  in 
its  details,  and  conveyed  plenary  powers,  both  in  respect  to  the 
legacies  and  the  intestate  property. 

The  legacies  given  by  the  testator,  were  paid  as  follows  : 
VOL.  i.— 33 


494  SUPREME  COURT  [March  Term, 

(City  of  Philadelphia  c.  Davis.) 

1832,  July  5,  Madame  Vidal,  the  legacy  of  -  $5,000 

««  "  (5,  J.  Y.  Clark  and  his  wife,  her  legacy  of  -  10,000 

"  "  7,  J.  Hemphill  and  hi*  wife,  -  -  10,000 

"  Aug.  21,  Trustees  of  Mrs.  Hemphill,  -  50,000 

"  Sept.  1,  Trustees  of  Mrs.  Ilaslam,  -  -  10,000 

1888,  Jan.  2,  Attorney  of  Etienne  Girard,  -  5,000 

In  each  of  these  cases  the  state  duty  on  legacies  to  collateral 
relations,  &c.  was  deducted. 

On  the  8th  of  October,  1832,  an  action  of  ejectment  was  insti- 
tuted in  the  Supreme  Court,  in  the  name  of  Louis  Vidal  and 
Franchise  Fenclon  his  wife,  against  the  Mayor,  Aldermen  and 
citizens  of  Philadelphia,  to  recover  the  real  estate  acquired  by 
the  testator,  after  the  date  of  his  last  codicil.  A  similar  action 
was  instituted  in  the  name  of  Mr.  Hemphill  and  wife,  Mr.  Clark 
and  wife,  and  Mr.  Haslam  and  wife,  on  the  same  day.  On  the 
13th  of  October,  1832,  a  similar  action  was  instituted  in  the  name 
of  Etienne  Girard.  In  each  of  these  cases,  the  action  was  en- 
tered by  the  agreement  of  the  attorneys  of  the  plaintiffs,  and  of 
the  city  solicitor  for  the  defendant,  dated  the  8th  of  October, 

1832,  and  approved  by  the  mayor  and  city  treasurer ;  and  a  case 
was  stated  for  the  opinion  of  the  Court,  signed  and  approved  in 
like  manner.     This  case,  which  set  forth  the  relationship  of  the 
plaintiffs  to  Mr.   Girard,  the    material   clauses   of  his    will    and 
the  date  of  the  acquisition  of  the  real  estate  in  controversy,  will 
be  found  in  4th  llawle,  323,  where  the  arguments  of  the  counsel, 
and   the   opinion  of  this  Court   upon    the  question    then   raised 
r*4Q"1      *arc  »iven>    r^nc  judgment  of  the  court  was  pronounced 

on  the  29th  of  March,  1833 ;  and  on  the  9th  of  April, 

1833,  the  following  resolutions  were  adopted  by  "  The  Commis- 
sioners of  the  Girard  Estate." 

"  Resolved,  that  the  executors  of  S.  Girard,  be  informed  that 
the  suit  instituted  by  the  next  of  kin,  for  obtaining  the  real  estate 
purchased  subsequent  to  the  date  of  the  execution  of  the  will,  has 
terminated  in  favor  of  the  plaintiff,  and  that  the  said  executors 
be  authorized  to  hand  over  the  title  papers  of  the  property,  which 
has  passed  by  the  decision,  to  the  said  next  of  kin  or  their  legal 
representatives." 

"Resolved,  That  the  representatives  of  the  next  of  kin  of  S. 
Girard,  be  informed  that  this  Board  is  prepared  to  settle  the 
account  of  the  rents  and  expenditures  of  the  estate  obtained  by 
the  late  decision  of  the  Supreme  Court,  and  that  the  agent  .of 
the  Girard  estate  be  directed  to  give  up  possession  of  the  said 
property." 

The  defendants  were  accordingly  put  in  possession  of  the  real 


1836.]  OF  PENNSYLVANIA.  495 

(City  of  Philadelphia  v.  Davis.) 

estate  and  the  title  papers  belonging  to  it,  and  the  rents  and  profits 
were  duly  accounted  for  with  them. 

The  present  action  was  instituted  on  the  14th  of  July  1834. 
Davis,  one  of  the  defendants,  was  tenant  in  possession ;  the  other 
defendants  came  in  as  landlords. 

Mr.  Williams,  for  the  plaintiffs. 

It  is  contended  on  the  part  of  the  plaintiffs,  that  the  defendants 
were  hound  to  elect  between  the  legacies  given  to  them  by  the 
will  of  Stephen  Girard,  and  the  after  accjuired  property  which 
did  not  pass  by  the  will  to  the  city,  and  that  they  are  not  entitled 
to  both.  This  question  was  not  raised  in  the  case  of  Grirard  v. 
The  City  of  Philadelphia,  (4  Rawle,  323.)  The  case  stated  did 
not  present  it,  and  it  was  not  argued  on  either  side.  This  eject- 
ment has  been  brought  for  the  purpose  of  obtaining  a  decision  of 
the  point. 

1.  Is  this  a  case  for  the  application  of  the  doctrine  of  election  ? 

The  rule  which  in  cases  of  a  bequest  by  the  testator,  of  what  he 
knew  to  belong  to  another,  authorized  the  legatee  to  have  either 
the  specific  thing  or  an  equivalent,  existed  in  the  civil  law.  In 
Dill  v.  Parker,  (Swanston,  396,  note,)  the  authorities  are  all 
collected,  and  the  rule  recognized.  By  that  law,  the  heir  had 
the  alternative  of  taking  under  the  will  or  refusing.  In  1755, 
the  Master  of  the  Rolls  states  the  English  rule  to  be,  as  it  is  now 
understood.  Clark  v.  Cruise,  (2  Vesey,  617.)  The  first  question 
is,  has  the  testator  done  more  than  he  had  a  right  to  do  ?  In  the 
case  of  Grirard  v.  The  City  of  Philadelphia,  it  was  settled  that 
he  had  no  right  to  devise  after-acquired  lands.  Then  has  he 
given  a  bounty  to  those  whom  the  disposal  of  the  after-acquired 
land  prejudices?  These  defendants  are  all  legatees  in  the  will. 
The  intention,  that  the  estate  he  might  acquire  after  making  his 
•.vill,  should  not  go  to  his  heirs  at  law,  is  *manifest.  It  r*4.qr>-i 
is  said,  that  it  may  be  sometimes  presumed.  (1  Swans-  *- 
ton,  400  note.)  This  Avill  is  perfect  in  all  respects,  which  distin- 
guishes it  from  a  class  of  cases.  In  Ilearle  v.  G-reenhanfc,  (3 
Atkyns,  715  ;  2  Vesey,  12,)  it  was  said  that  if  an  instrument  is 
executed  by  a  person  under  an  incapacity,  there  can  be  no  elec- 
tion. In  Croley  v.  Barry,  (2  Ves.  &  Beames,  127,)  however, 
the  Lord  Chancellor  expressed  his  doubts  of  the  correctness  of  this 
principle,  and  put  the  heir  to  his  election  under  a  will,  not  made 
so  as  to  pass  real  estate  in  Scotland.  So  in  Carey  \.Aslrew,  (1 
Cox,  C.  C.  240,)  Lord  Eldon  expressed  his  doubts.  It  was  evi- 
dent that  Mr.  Girard  thought  that  he  could  pass  after-acquired 
land,  by  the  words  in  the  first  codicil.  The  second  was  obviously 
made  for  the  purpose  of  giving  directions  respecting  his  projected 
college;  not  with  the  intention  of  republishing  his  will/  It  is 


496  SUPREME  COURT  [March  Term, 

(City  of  Philadelphia  r.  Davis.) 

worthy  of  remark,  that  he  has  not  given  an  inch  of  ground  in 
Philadelphia  to  any  other  than  the  city.  He  has  carefully  dis- 
posed of  everything  he  had ;  and  excepting  the  two  youngest  chil- 
dren of  his  brother  Etienne,  he  has  mentioned  every  one  of  his 
relations.  The  English  authorities  on  this  subject  are  numerous 
and  consistent.  Noys  v.  Mordaunt,  (2  Vernon,  581 ;)  Anon. 
(Gilb.  Eq.  Rep.  15 ;)  2  Mad.  Chan.  51 ;  Welby  v.  Welby,  (2  Ves. 
&  Beames,  189;)  Streetjield  v.  Streetjield,  (Forester,  176  ;)  Sir 
11.  Walpnle  v.  Con-way,  (Barnadiston,  153 ;)  Roberts  v.  Kinyley, 
(1  Ves.  238;)  Kirkham  v.  Smith,  (1  Ves.  258;)  Unnettv.. 
Wilk*,  (Ambler,  430;)  Cooke  v.  Hilly  er,  (1  Ves.  234;)  Franks 
v.  Ktandish,  (1  Bro.  C.  C.  588;)  Highway  v.  Banner,  (1  Bro. 
C.  C.  584;)  Lewis  v.  King,  (2  Bro.  C.  C.  600;)  Finch  v. 
finch,  (4  Bro.  C.C.  38;  1  Ves.  jr.  534;)  Freak  \.Barrinqton, 
(3  Bro.  C.  C.  285;)  Whistler  v.  W.ebster,  (2  Ves.  jr.  367;) 
Wilson  v.  Townsend,  (2  Ves.  jr.  367;)  Wilton  v.  Mount,  (3 
Ves.  191 ;)  Rutter  v.  M'Lean,  (4  Ves.  536;)  Blunt  v.  Clith- 
ero,  (10  Ves.  589.)  Then  in  the  case  of  Thellusson  v.  Woodford, 
(13  Ves.  209,)  Lord  Erskine  held,  that  the  heir  at  law,  was  bound 
to  elect  between  the  benefits  which  he  took  under  the  will,  and  the 
land,  which  the  testator  had  in  his  life  time  contracted  to  purchase, 
but  which  was  not  actually  conveyed  to  him  at  the  time,  and  re- 
specting which  he  made  provision  in  the  will.  The  decision  in  this 
case  was  affirmed  in  the  House  of  Lords ;  (1  Dow,  249;)  Welly  v. 
Welby,  (2  Ves.&  B.  189;)  Reynolds  v.  Torin,(\  Russell,  130;) 
Tibltets  v.  Tibbets,  (1  Jacobs,  317.)  In  Churchman  v.  Ireland, 
(1  Russell  &  Mylne,  250,)  Lord  Brougham  sustains  Thellusson 
v.  Woodford,  and  decides  in  conformity  to  it.  The  case  is  exactly 
like  the  present.  The  cases  of  Back  v.  Kelt,  (Jacobs,  534,)  and 
Johnson  v.  Telford,  (1  Russ.  &  M.  244,)  are  cases  in  which  the 
intention  was  doubtful,  which  cannot  be  said  here.  There  is  a  class 
of  cases,  under  the  custom  of  London,  which  are  applicable  to  this 
question.  Morris  v.  Borrouyh,  (1  Atkvns,  404 ;)  Puyh  v.  Smith, 
(2  Atkyns,  43;)  Cur  v.  Carr,  (2  Atk.  278;)  Cooper  v.  Scott. 
(3  P.  Wins.  119.)  The  general  principles  of  the  English  law  in 
r*4Q71  rcSard  t°  election  have  been  *recognized  in  this  state  in 
several  cases,  Cauffman  v.  Caujfman,  (17  Serg.  &  R. 
16;)  Heron  v.  Hoffman,  (3  Rawle,  396;)  Allen  v.  (retz,  (2 
Penn.  Rep.  322:)  Creacraft  v.  Dilley,  (3  Yeates,  79;)  Webb  v. 
Evans,  (1  Binn,  565.) 

2.  Have  these  defendants  elected  to  take  their  legacies  ?  Upon 
this  point  there  can  be  little  doubt.  The  evidence  shows  clearly 
that  they  have  been  paid  in  full,  and  that  they  have  given  receipts 
or  releases  to  the  executors.  The  payment  to  Etienne  Girard 
was  after  this  ejectment  was  instituted.  But  supposing  that  an 
election  has  not  been  made  under  such  circumstances  as  to  be 


1836.]  OF  PENNSYLVANIA.  497 

(City  of  Philadelphia  v.  Davis.) 

binding  upon  them,  this  Court  will  now  put  them  to  an  election. 
Ejectment  is  an  equitable  action  here  substituted  for  a  bill  in  equity. 
The  counsel  cited  under  this  head,  Co.  Litt.  145,  (a ;)  Cook  v. 
Hillyer,  (1  Ves.  234  ;)  Bradish  v.  Gee,  (Ambler,  229  ;)  Lin- 
gen  v.  Saury,  (1  P.  Wms.  172 ;)  Grlen  v.  Fisher,  (6  Johns.  C. 
R.  33  ;)  .Lewis  v.  King,  (2  Bro.  C.  C.  600  ;)  Birmingham  v. 
Kirwan,  (2  Sch.  &  Lefroy,  450  ;)  Hamilton  v.  BuvJcwalter,  (2 
Yeates,  392  ;)  Wilson  v.  Wilson,  (9  Serg.  &  R.  424 ;)  Cauff- 
man v.  Cauffman,  (17  Serg.  &  R.  16  ;)  Ambler  v.  Norton,  (4 
Hen.  &  Munf.  237  ;)  1  Hoveuden's  notes  to  Vesey,  222;  2  Roper 
on  Legacies,  427  ;  Thomas  v.  Wright,  (9  Serg.  &  R.  93  ;) 
Peebles  v.  Reading,  (8  Serg.  &  R.  484.) 

Mr.  Kittera,  for  the  defendants. 

The  question  of  election  was  considered  before  the  argument 
of  the  case  of  Girard  v.  Philadelphia,  but  it  was  thought  that 
there  was  not  enough  in  the  case  to  raise  that  question.  After 
the  decision  of  that  case,  the  property  was  given  up  to  the  de- 
fendants, most  of  whom  resided  in  France,  and  took  measures  to 
dispose  of  their  interest.  The  industry  of  the  opposite  counsel 
has  not  enabled  them  to  discover  a  single  case  like  the  present. 
Mrs.  Hemphill,  for  example,  has  $50,000  to  her  separate  use, 
vested  in  trustees.  Can  she  be  compelled  to  take  real  estate, 
which  will  be  liable  for  her  husband's  debts  during  her  life  ? 
Mrs.  Hemphill's  proportion  of  the  real  estate  is  considerably 
less  than  her  legacy.  So  is  Mrs.  Haslam's.  On  the  other  hand, 
the  interest  of  Etienne  Girard  and  of  Madame  Vidal  in  the  real 
estate  is  greater  than  their  legacies.  How  can  an  election  in  one 
or  the  other  case  be  made  or  presumed.  How  can  trustees  or 
children  elect  ?  The  law  is  settled,  that  it  must  be  a  plain  and 
absolute  devise.  7  Bac.  Abr.  450,  appx. ;  Forrester  v.  Cotton, 
(Ambler,  389  ;)  Call  v.  Shore,  (Ambler,  727  ;)  Cauffman  v. 
Cauffman,  (17  Serg.  &  R.  16 ;)  1  Swanston,  401,  415,  441 ;  2 
Ves.  543.  What  is  there  in  this  will  to  satisfy  the  Court,  that 
Mr.  Girard  intended  to  give  this  after-acquired  real  estate  to  the 
City  ?  It  is  plain,  that  he  knew  it  would  not  pass  without  a  re- 
publication.  The  will  was  drawn  by  a  professional  person.  In 
the  second  codicil  the  testator  uses  words  which  may  be  taken  to 
mean,  that  he  intended  *to  do  something  more.  After  r*jaoT 
the  date  of  that  instrument,  his  health  rapidly  declined,  L 
and  it  is  probable  that  his  distant  relatives  recurred  to  his  mem- 
ory. Then,  if  the  Court  are  not  convinced,  that  there  was  a 
clear  design  to  give  this  property  to  the  City,  they  will  not  put 
these  parties  to  an  election,  in  deference  to  an  English  decision 
of  recent  date,  which  is  not  authority  here.  In  1  Swanston, 
406,  it  was  held  that  a  will  not  executed  according  to  the  statute 


498  SUPREME  COURT  [March  Term, 

(City  of  Philadelphia  r.  Davis.) 

of  frauds,  docs  not  put  the  party  to  an  election.  Brown  v.  Bru~ 
erton,  (3  Johns.  C.  C.  553 ;)  1  Bridg.  Eq.  Dig.  601  ;  Ham- 
mond's Dig.  272." 

Mr.  Sergeant,  on  the  same  side. 

1.  If  this  is  a  case  of  election,  none  has  yet  been  made.     It 
would  be  strange  to  say,  that  there  was  an  election  made  when 
no  one  supposed  there  was  a  case  for  an  election.     There  must 
be  a  knowledge  of  facts  and   rights.     This  was  laid  down  in 
Cauffman  v.  Cauffman  and  Heron  v.  Hoffman.     If  a  party  does 
an  act  without  knowledge  of  his  rights,  he  is  not  bound.     An  im- 
plied election  is  contrary  to  justice  and  the  reason  of  the  general 
rule.     The  ca^e  of  Churchman  v.  Ireland  was  unknown  here 
at  the  date  of  the  will  and  codicils,  and  at  the  death  of  Mr. 
Girard. 

2.  Is  this  a  case  to  which  the  doctrine  of  election  ought  to  be 
applied  ? 

In  England  there  are  only  four  cases  which  resemble  this: 

T/ielluason  v.  Woodford,  decided  by  Lord  Erskine  in  1806. 

Back  v.  Kett,  "     by  Sir  T.  Plumer  in  1822. 

Johnson  v.  Telford,  "     by  Sir  John  Leach  in  1830. 

Churchman  v.  Ireland,  "  by  Lord  Brougham  in  1831. 
It  is  evident,  that  as  to  the  doctrine  these  Judges  are  equally 
divided;  Lords  Erskine  and  Brougham  being  on  one  side,  and 
Sir  T.  Plumer  and  Sir  J.  Leach  on  the  other.  Whatever  may 
be  the  reputation  of  the  two  lords  for  eloquence,  they  have 
never  ranked  as  profound  equity  jurists.  Down  to  the  year 
1800,  there  is  no  trace  of  an  opinion  by  either  lawyer  or  judge, 
that  the  heir  was  bound  to  elect  in  regard  to  after-acquired 
land,  though  there  must  have  been  a  multitude  of  cases.  Lord 
Erskine  admits  in  Thelluwm  v.  Woodford,  that  there  was  no  pre- 
cedent, authority  or  even  dictum ;  but  he  argues  that  it  comes 
within  the  reason  of  the  rule.  Now  the  principle  of  the  rule  is, 
that  you  shall  not  claim  under  and  against  the  instrument.  But 
suppose  the  instrument  has  no  legal  operation  or  effect,  how  can 
the  principle  apply  ?  Take  the  case  of  an  infant  testator  or 
any  other,  where  there  is  a  defect  of  power  to  pass  the  real  estate. 
It  is  plain  that  there  is  no  reason  for  an  election  in  such  case : 
and  such  was  the  law  until  the  case  of  T/iellusson  v.  Woodford. 
In  the  case  of  after-purchased  lands,  the  defect  is  not  in  the 
power,  but  in  the  instrument.  It  is  a  defect  which  the  testator 
may  remedy  in  a  moment  by  republishing  his  will.  There  is  no 
r* iqqn  ""condition  necessary.  How  is  the  intention  of  the  tes- 
tator then  to  be  ascertained  with  regard  to  after-acquired 
property  ?  The  decision  in  Thellusson  v.  Woodford  was  prob- 
ably right ;  but  it  docs  not  appear  to  have  been  necessary  to  re- 


1836.]  OF  PENNSYLVANIA.  499 

(City  of  Philadelphia  v.  Davis. ) 

sort  to  the  doctrine  of  election.  The  will  was  sufficient  in  itself. 
In  Back  v.  Kett,  the  testator  desired  his  executors  to  sell  what- 
ever real  estate  he  might  "die  possessed  of,"  yet  Sir  Thomas 
Plumer  said  he  had  no  doubt,  that  the  heir  was  not  bound  to 
elect ;  and  he  said  that  the  case  of  Thellusson  v.  Woodford  had 
gone  quite  far  enough,  and  that  he  should  have  entertained 
doubts  in  that  case.  In  Johnson  v.  Telford  the  words  in  the  will 
were  the  same  as  in  Back  v.  Kett,  and  in  the  codicil  the  testator 
disposed  of  "all  hereditaments"  that  might  be  "purchased  by 
him  at  any  time  or  times,"  and  "  conveyed  to  him  after  the  date 
and  publishing"  of  his  will;  the  case  resembles  the  present  very 
strongly.  Sir  John  Leach,  however,  thought  that  the  words 
were  not  sufficiently  strong  to  exclude  the  co-heirs.  Then  came 
the  case  of  Churchman  v.  Ireland,  in  which  Lord  Brougham 
admits,  that  if  Back  v.  Kett  is  to  stand  as  law,  Thellusson  v. 
Woodford  is  considerably  broken  in  upon.  Now  the  words  of 
the  will  in  Churchman  v.  Ireland  are  obviously  no  more  than 
those  of  the  scrivener ;  words  of  course,  which  he  and  the  tes- 
tator after  him  use  without  meaning  any  more  than  by  the  words, 
"  all  my  estate,"  which  have  never  been  supposed  to  make  a  case 
for  an  election.  Lord  Brougham's  decision  is  in  accordance  with 
his  views  of  reform  in  the  law  respecting  after-acquired  land. 
Here  the  law  has  been  altered,  and  the  question  cannot  occur 
again  ;  but  the  province  of  the  Courts  is  different  from  that  of  the 
Legislature.  The  decision  in  Churchman  v.  Ireland  is  unsatis- 
factory to  the  profession,  and  appears  from  the  London  Law 
Magazine,  (vol.  vii.  p.  358  ;)  where  it  is  said  to  have  "  met  with 
anything  but  general  acquiescence."  The  result  of  all  the  cases 
which  are  entitled  to  be  considered  as  authority  is,  that  the  words 
of  the  will  ought  to  leave  no  doubt  in  the  mind  of  the  judge. 
Here  the  words,  "  I  intend  to  pass,"  may  be  construed  to  mean, 
"I  intend  to  do  some  act  to  pass  these  after-acquired  lands;" 
and  if  there  is  any  ambiguity,  the  Court  will  lean  in  favor  of 
the  heirs.  The  doctrine  of  Thellusson  v.  Woodford  has  never 
been  heard  in  Pennsylvania ;  nor  as  far  as  appears  from  the 
reports,  has  it  been  countenanced  in  any  other  state.  But  what- 
ever might  be  its  authority,  if  the  law  of  descents  stood  as  in 
England,  it  will  be  very  difficult  to  carry  it  out  here.  By  the 
act  of  1794  the  undisposed  surplus  of  real  and  personal  estate 
goes  to  the  next  of  kin,  of  whom  there  may  be  an  hundred  ill 
the  same  degree.  Each  of  these  is  entitled  to  elect.  How  can 
this  be  admitted  with  any  degree  of  convenience.  .  The  act  of 
1794  is  imperative,  that  the  remaining  part  of  all  lands,  tene- 
ments and  hereditaments,  &c.  not  disposed  of  by  will,  "  shall  be 
divided  and  enjoyed  as  follows,"  &c.  *How  can  the 
doctrine  of  election  be  applied  so  as  to  prevent  the  oper- 
ation  of  this  law  ? 


500  SUPREME  COURT  [March  Term, 

(City  of  Philadelphia  t.  Davis.) 
Mr.  Scott,  in  reply. 
An  examination  of  the  evidence  will  show  clearly. 

1.  That  it  was  the  deliberate  intention  of  the  testator,  that 
the  premises  should  pass  to  the  plaintiffs  upon  the  trusts  declared 
in   his  will,  and   that   the  defendants  should   have  no   part  of 
them. 

2.  That  he  has  given  legacies  to  the  defendants,  amounting  to 
considerable  sums. 

3.  That  they  have  received   these  legacies,  and   made  their 
election. 

The  first  nineteen  sections  of  this  will  are  occupied  with  the 
legacies,  which  he  desired  to  bestow,  including  those  to  the  de- 
fendants. He  gives  to  public  institutions  and  in  charities,  116,- 
000  dollars ;  then  bequeaths  to  his  relations,  including  the  chil- 
dren of  Eticnne,  $140,000,  besides  the  real  estate  in  France ;  and 
from  that  period  he  never  reverts  to  this  part  of  his  work,  which 
he  regards  as  completed.  It  will  be  remembered,  that  he  had  no 
children  ;  that  he  was  the  architect  of  his  own  fortune  ;  and  it  is 
well  known  that  he  entertained  strong  opinions  on  the  inexpedi- 
ency of  giving  large  fortunes  to  relations.  His  great  object 
seems  to  have  been  the  improvement  of  the  city  in  which  he  re- 
sided, and  the  construction  of  the  magnificent  seminary  which  is 
to  bear  his  name.  Nor  did  he  consider  it  expedient  to  bestow 
his  money  equally  on  all  standing  in  the  same  degree  of  relation- 
ship to  him.  There  is  a  remarkable  inequality  in  the  allotment 
of  his  legacies.  If  then,  the  after-acquired  property  is  to  go  to 
them,  it  will  be  on  a  principle  different  from  what  he  contemplated. 
There  is  no  guide  to  the  intention  but  the  will  and  the  codicils, 
and  if  they  are  examined,  it  will  be  found  that  their  language  is 
uniform.  Nothing  can  be  more  positive  or  distinct  than  the  ex- 
pressions of  the  codicils.  It  is  by  no  means  certain,  that  the 
person  who  drew  this  will,  knew  that  after-acquired  land  would 
not  pass  by  an  express  declaration  of  an  intention  to  pass.  The 
contrary  is  to  be  presumed.  It  is  now  settled  by  the  case  in  4th 
Rawle,  that  such  was  the  law,  but  it  never  was  so  settled  before 
in  Pennsylvania.  The  second  codicil  was  made  only  about  six 
months  before  his  death.  It  does  not  notice  the  first,  but  goes 
back  to  the  will,  declaring  the  intention  in  emphatic  language. 
The  fact  of  the  legacies  to  the  defendants,  and  their  receipt  of 
them,  is  established  by  the  evidence.  Then  in  saying  that  equity 
will  not  allow  them  to  keep  both  the  legacies  and  the  land,  we  are 
supported  in  principle  by  the  highest  authorities ;  by  Lord  Tal- 
bot  in  Harvey  v.  Lidxmveric,  (Cas.  Temp.  Tulb.  130  ;)  by  Lord 
Camden  in  Villa  Jteal  v.  Lord  Galway,  (1  Bro.  C..C.  293, 
n. ;)  by  Lord  Loughborough  in  Pearson  v.  Pearton,  f*  Bro. 
f*"01l  ^'  ^"  ^^  ')  an(^  y  Lords  *Erskine  and  Brougiiam,  in 
the  cases  cited.  Judge  Duncan  has  recognized  the  rule 


1836.]  OF  PENNSYLVANIA.  501 . 

(City  of  Philadelphia  v.  Davis.) 

existing  in  this  state;  (Cauffman  v.  Cauffman.}  And  in  the 
Supreme  Court  of  the  U.  S.  the  same  principle  exists ;  Hunter 
v.  Bryant,  (2  Wheaton,  37.)  Mr.  Sugden,  a  very  careful  writer, 
lays  it  down,  that  a  purchaser  from  an  heir  who  claims  an  estate 
conveyed  to  his  ancestor  after  the  date  of  his  will,  should  be  sat- 
isfied of  three  points :  one  of  which  is,  that  "  if  the  will  affects  to 
pass  all  the  estates  which  the  testator  might  thereafter  acquire, 
the  heir  at  law  does  not  take  any  interest  under  the  will;"  (Sug- 
den on  Vendors,  138.)  This  book  was"  republished  in  Philadel- 
phia with  notes,  ten  years  before  the  date  of  Mr.  Girard's  will — 
consequently  the  doctrine  of  election  in  respect  to  after-acquired 
lands,  was  familiar  to  the  profession.  It  has  been  suggested  that 
our  intestate  act  necessarily  makes  a  difference  in  consequence  of 
the  division  of  estates ;  but  under  the  custom  of  London  there 
is  the  same  division,  and  numerous  cases  exist  in  support  of  the 
doctrine  of  election.  The  case  of  Thellusson  v.  Woodford,  was 
decided  on  this  'ground  ;  and  it  is  difficult  to  say  how  it  could  be 
decided,  without  ruling  this  question.  The  judgment  of  Lord 
Erekine  in  that  case,  was  affirmed  by  the  House  of  Lords,  (1 
Dow,  249.)  It  does  not  rest  as  has  been  supposed,  on  the  au- 
thority of  Lord  Erskine  merely.  Churchman  v.  Ireland,  also, 
is  sustained  by  the  opinion  of  the  Vice  Chancellor,  as  will  be  seen 
by  the  report  in  4  Simons,  520.  The  remarks  upon  Lord  Broug- 
ham's judgment  in  this  case,  contained  in  the  Law  Magazine,  are 
those  of  a  personal  or  political  opponent,  as  other  passages  of  the 
same  article  clearly  show.  It  is  certain  that  Thellusson  v.  Wood- 
ford,  has  never  been  overruled ;  it  is  believed  to  be  the  settled 
law  of  England  at  this  time  ;  and  there  seems  nothing  in  our  juris- 
prudence to  prevent  the  application  of  the  doctrine  of  election  in" 
the  same  manner.  The  cases  of  Back  v.  Kett,  and  Johnson  v. 
Telford,  stand  on  different  ground,  both  because  their  authority 
is  not  so  great,  and  the  language  of  the  wills  was  different  from 
the  present. 

2.  Has  an  election  in  law  been  made  here  ?  I  admit  that  there 
ought  to  be  time  and  opportunity  for  deliberation ;  was  there 
not  such  here  ?  It  is  certain  that  the  subject  of  election  was 
agitated  at  the  time  of  the  first  ejectment.  If  the  receipt  of  the 
legacies  did  not  amount  to  an  election,  their  retention  after  the 
bringing  of  this  ejectment  may  be  so  considered.  The  case  of 
Heron  v.  Hoffner,  shows  that  election  may  be  by  matter  in  pais. 
So  do  Cauffman  v.  Cauffman,  and  Oreacraft  v.  Lilly.  Then  as 
to  the  situation  of  the  parties.  Etienne  was  sui  juris,  and  the 
power  of  attorney  shows  that  he  was  Avell  acquainted  with  his 
rights.  Madame  Vidal  was  a  married  woman,  it  is  true,  but  by 
the  French  law  she  was  a  partner  with  her  husband,  and  had 
power  to  act;  and  in  equity  as  to  her  separate  property,  she  is 


5C1  SUPREME  COURT  [March  Term, 

(City  of  Philadelphia  t.  Davis.) 

considered  a  feme  sole,  (Clancey,  358.)  In  Harvey  v.  Dixbcw- 
vtrie,  Lord  Talbot  made  provision  for  the  cases  of  a  married 
r*^fl<>l  woman  an(l  an  infiuat:  and  tliere  are  several  other  cases 
J  *of  election  by  femes  covert  ;  Ardesrif  \.  Bennet,  (2 
Dickens,  463;)  Earl  of  Darlington  v.  Pulteney,  (7  Bro.  P.  0. 
546  ;)  Wilwn  v.  Townttend,  (2  Ves.  jun.  693;)  Vane  v.  J)un- 
(/<i7t  ?«/?t,  (2  Schoales  &  Lefroy,  133.)  As  to  the  other  legatees, 
their  receipts  and  those  of  their  trustees,  are  sufficient  evidence  of 
their  election;  Penriock'v.  Freeman,  (1  Watts,  209.)  At  all 
events  the  Court  has  power  in  this  action  to  put  them  to  election. 
There  are  many  precedents  for  conditional  verdicts  in  ejectment. 

The  opinion  of  the  Court  was  delivered  by 

KENNEDY,  J. — The  plaintiffs  claim  to  recover  the  property  in 
question  of  the  defendants,  upon  the  principle  of  election.  The 
doctrine  of  equitable  election  is  founded  on  the  intention  of  the 
author  of  the  instrument,  which  must,  as  I  apprehend,  be  col- 
lected from  the  face  of  the  instrument  itself.  When  the  intention 
necessary  to  raise  the  question  of  election,  is  clearly  expressed  or 
necessarily  implied,  the  party  to  whom  a  benefit  is  given  by  the 
instrument,  but  claiming  a  right  adverse  thereto,  may  either  be 
compelled  to  make  his  election,  or  otherwise  to  make  compensa- 
tion out  of  what  is  thereby  given  to  him.  But  unless  the  inten- 
tion be  so  expressed  or  implied,  he  cannot  be  put  to  his  election, 
nor  called  on  to  make  compensation.  Accordingly,  in  Blake  v. 
Bunbury,  (1  Ves.  Jr.  524,)  Lord  Commissioner  Eyre  says,  "it 
ought  to  appear  by  declaration,  a  plain  or  necessary  conclusion 
from  the  circumstances ;  and  no  man  ought  under  pretence  of 
this  rule,  to  be  spelt  or  conjectured  out  of  his  property."  And 
again  in  Crotbey  v.  Murray,  (Id.  557,)  he  repeats,  "  tliere  never 
can  be  a  case  of  election,  but  upon  a  presumed  intention  of  the 
testator."  See  also  Finch  v.  jFYn«//,(Id.  541.)  So  Lord  Eldon, 
in  liaxhwnod  v.  Peyton,  (18  Ves.  41,)  declares,  "that  an  effec- 
tual gift  may  be  made  by  raising  a  case  of  election ;  but  for  that 
purpose  a  clear  intention  to  give  that,  which  is  not  his  property, 
is  always  required."  And  it  would  seem  as  if  the  heirs  at  law 
of  the  testator  will  not  be  put  to  make  their  election,  when  the 
will  is  susceptible  of  a  construction  that  does  not  require  it;  for  lair 
Thomas  Plumer,  Master  of  the  Rolls,  in  Ba<-k  v.  Kett,  (1  Jacob, 
534,)  held,  in  case  of  a  will  giving  certain  benefits  to  the  heir  at 
law  of  the  testator,  and  directing  his  executors  to  sell  whatever 
real  estate  he  should  die  possessed  of;  that  the  heir  was  not 
bound  to  elect  between  the  benefits  given  by  the  will,  and  lands 
purchased  by  the  testator  after  the  making  thereof,  which  de- 
scended to  the  heir  by  law,  but  held  that  he  was  entitled  to  both, 
alleging  "  that  the  direction  to  the  executors  to  sell  all  the  real 


1836.]  OF  PENNSYLVANIA.  502 

(City  of  Philadelphia  v.  Davis.) 

estates  that  he  should  die  possessed  of,  might  mean  all  which  the 
will  could  operate  upon,  that  is,  all  which  he  then  had,  and  which 
he  should  continue  to  have  at  his  death."  Likewise  in  Johnson 
v.  Telford,  (1  Russell  &  Mylne,  244;  s.  c.  4  Oond.  Eng.  Oh. 
Rep.  409,)  the  testator  by  a  codicil,  reciting  *that  he 
had  purchased  certain  freeholds  since  the  date  of  his 
will,  devised  them  to  trustees  upon  the  trusts  therein  expressed, 
and  directed  that  if  any  hereditaments  purchased  by  him  at  any 
time  or  times  should  happen  to  be  conveyed  after  the  date  and 
publishing  thereof,  his  heir  at  law  or  other  real  representative, 
and  every  other  person  in  whom  the  same  should  be  vested,  should 
forthwith,  upon  his  decease,  convey  and  assume  the  same  to  his 
trustees  upon  the  trusts  of  his  will.  He  purchased  other  real 
estates  afterwards,  which  were  duly  conveyed  to  him;  and  Sir 
John  Leach,  Master  of  the  Rolls,  held  that  the  language  used  in 
the  codicil  did  not  refer  to  estates  purchased  after  the  codicil,  but 
to  estates  which  should  happen  to  be  conveyed  thereafter;  and 
therefore  as  to  the  estates  purchased  subsequently,  a  case  of  elec- 
tion was  not  raised  against  the  heir  taking  benefits  given  to  him 
by  the  will. 

Now,  as  regards  the  case  under  consideration,  a  majority  of  the 
court  are  of  opinion  that  the  testator  must  be  presumed  to  know 
how  the  law  stood  at  the  time  of  making  his  will  and  the  codicils 
thereto ;  and  that  according  to  it  he  could  not  then  devise  after- 
acquired  real  estate ;  that  whatever  he  should  acquire  thereafter, 
if  he  wished  it  to  pass  by  his  will,  he  must  in  order  to  effect  this, 
either  make  a  new  will,  republish  that  he  had  made,  or  add  a  cod- 
icil to  it,  with  that  view.*  With  this  knowledge  on  his  part,  it  is 
fair  to  conclude  that  by  the  language  used  in  the  codicils  to  his 
will,  he  only  meant  to  declare  that  as  often  as  he  should  thereafter 
acquire  any  additional  real  estate,  his  intention  then  was  to  dis- 
pose of  it  under  his  will,  either  by  a  republication  thereof,  or 
adding  to  it  a  codicil.  But  not  having  republished  his  will  or 
made  a  codicil  thereto,  subsequently  to  the  purchase  of  the  lands 
in  question,  it  is  reasonable  to  infer,  that  he  changed  his  mind  in 
regard  to  disposing  of  them  by  will,  and  resolved  to  let  them  pass 
upon  his  death  to  his  heirs  at  law.  As  to  myself  however,  al- 
though I  think  differently,  and  incline  to  entertain  the  opinion, 
judging  from  the  language  of  the  codicils  alone,  that  the  testator 
thought  he  could  dispose  of  his  after-acquired  real  estate  by  his 
will,  as  well  as  that  which  he  then  owned,  by  declaring  his  inten- 
tion to  that  effect,  and  that  after  making  the  codicils  he  believed 
he  had  done  so ;  yet  standing  alone  in  this  opinion,  and  not  being 
supported  in  it  by  the  concurrence  of  my  brethren,  I  feel  that  it 

*  Act  8th  April,  1833,  §  10  P.  L.  250;  Pur.  Dig.  1017,  §  11. 


503  SUPREME  COURT.  [March  Term, 

(City  of  Philadelphia  t>.  Davis.) 

would  be  unbecoming  in  me  to  pronounce  that  the  testator  had 
manifested  an  intention  free  from  all  reasonable  doubt,  and  such 
as  clearly  required  an  election  on  the  part  of  the  heirs.  In  this 
I  consider  myself  sustained  by  the  example  of  Lord  Cowper  in 
Lawrence  v.  Lawrence,  (1  Bro.  P.  C.  591,  first  ed.)  which  is 
one  of  the  early  cases,  that  we  have  a  report  of  in  a  Court  of 
Equity  on  the  subject  of  election.  In  it,  after  a  recovery  of 
dower  at  law  by  Dulcibella  Lawrence,,  and  the  receipt  by  her  of 
certain  benefits  under  the  will  of  her  late  husband,  which  Lord 
Somers  conceived  were  given  to  her  in  lieu  of  dower,  he  decreed 
r*^041  a  PcrPctual  injunction  against  *her,  but  Lord  Keeper 
Wright,  thinking  that  the  benefits  taken  under  the  will 
were  not  intended  by  the  testator  to  be  in  lieu  of  dower,  reversed 
the  decree  of  Lord  Somers ;  after  which  Lord  Cowper,  upon  a 
bill  by  a  subsequent  remainder-man,  refused  to  disturb  the  decree 
of  reversal,  considering  the  intention  of  the  testator  to  be  dubious, 
merely  from  the  conflicting  opinions  previously  expressed  by  Lord 
Somers  and  Lord  Wright  in  respect  to  it. 

The  court  then  in  this  case,  being  of  opinion  that  the  testator 
did  not  intend  to  pass  the  property  in  controversy,  by  his  will  and 
the  codicils  thereto,  it  follows  clearly  that  the  plaintiffs  have  no 
ground  or  pretence  whatever  upon  which  to  found  their  claim  to  a 
recovery.  But  even  supposing  that  he  had,  and  that  he  had  de- 
clared his  intention  to  that  effect,  in  terms  as  clear  as  the  light  at 
noonday,  still  a  majority,  if  not  the  whole  of  the  court,  are  fully 
convinced  that  the  plaintiffs  could  not  recover. 

Anterior  to  the  case  of  TJieUusgon  v.  Woodford,  (13  Ves.  209,) 
which  was  decided  by  Lord  Erskine  in  1800,  there  is  no  case  to 
be  found,  in  which  it  appears  to  have  been  suggested  or  thought 
that  an  heir  at  law,  who  was  a  legatee  under  the  will  of  the  tes- 
tator, and  upon  whom  lands  acquired  by  the  latter,  after  making 
his  will,  had  descended,  could  be  compelled  to  make  his  election 
merely  because  the  testator  had  undertaken  by  his  will  to  dispose 
of  nil  the  lands  which  he  should  thereafter  acquire.  It  is  not 
credible  that  the  case  of  the  heirs  at  law,  taking  at  the  same 
time  a  benefit  under  such  will  and  after-acquired  land  by  descent, 
never  occurred  until  the  case  of  Thrlluxxon  v.  Wondford.  On 
the  contrary  it  is  more  than  probable  that  it  often  happened  with- 
out its  having  ever  entered  into  the  mind  of  any  one  to  make  this 
objection  to  it.  This  is  strongly  persuasive,  if  not  irresistible 
evidence,  to  induce  a  belief,  that  the  doctrine  of  election  was 
never  thought  to  have  embraced  such  a  case  before.  This  infer- 
ence seems  to  receive  support  from  Lord  Eldon  in  Broome  v. 
Monkt(lQ  Yes.  609,) -decided  by  him  in  the  year  preceding  that 
of  Tlrllittton  and  Woodford  by  Lord  Erskine,  when  he  says, 
"election  is  where  the  testator  gives  what  does  not  belong  to 


1836.]  OF  PENNSYLVANIA.  604 

(City  of  Philadelphia  ®.  Davis.) 

him,  but  does  belong  to  some  other  person ;  and  gives  that  per- 
son some  of  his  own:  by  virtue  of  which  gift  a  condition  is  im- 
plied, either  that  he  will  part  with  his  own  estate,  or  shall  not 
take  the  bounty."  This  doubtless,  was  thought  by  Lord  Eldon 
to  be  a  faithful  and  accurate  abstract  of  all  the  cases  decided  up 
to  that  time,  in  which  it  had  been  held  that  a  party  taking  a 
benefit  under  a  will  was  bound  to  elect.  It  certainly  embraces 
very  fully  and  distinctly  the  cases  of  Noys  v.  Mordaunt,  (2  Vern. 
531 ;)  Streatfield  v.  8treatfield,  (Co.  Temp.  Talb.  176,)  and  sub- 
stantially also,  as  I  conceive,  the  Anonymous  case  in  Gilb.  Eq. 
Rep.  15,  which  are  the  leading  cases  on  this  subject,  with  the 
exception  of  White  v.  White  and  Others,  (2  Dick.  522,)  to  be 
noticed  more  particularly  hereafter ;  all  decided  before  our 
revolution,  and  therefore  to  be  considered  as  having  a  claim  to 
*some  binding  authority  with  us.  Lord  Eldon  certainly  r*-nc-i 
did  not  think  that  such  a  case  as  Thellusson  v.  Wood-  L 
ford,  Avould  have  been  sufficient  to  put  the  heir  at  law  to  his  elec- 
tion, under  the  view  that  Lord  Erskine  took  of  it.  The  contrary 
however  is  plainly  inferrible  from  what  he  says ;  for  after  stating 
as  above  what  appeared  to  him  to  be  the  true  test  by  which  to 
determine  a  case  of  election;  he  in  order  to  show  that  the  case 
then  under  his  consideration  did  not  come  within  it,  proceeds  by 
saying,  that  the  question  there  was  not  whether  the  testator  had 
taken  away  from  the  defendants  what  belonged  to  them,  but 
whether  he  had  taken  away  from  them  part  of  his  own  personal 
estate.  His  words  are  "but  here  the  question  is  not  that,  but 
whether  he"  (meaning  the  testator,)  "has  taken  away  from  these 
defendants,  part  of  that  personal  estate  which  was  the  testator's, 
and  was  given  to  be  laid  out  in  the  purchase  of  lands."  Now 
the  form  here  given  by  Lord  Eldon,  to  the  question  actually  pre- 
sented by  the  case  of  Broome  v.  Monk,  is  substantially  the  same 
with  that  given  by  Lord  Erskine  in  Thellusson  v.  Woodford,  as 
also  with  the  one  presented  by  the  case  before  us,  if  it  be  admit- 
ted that  the  testator  intended  to  pass  the  land  in  dispute  by  his 
will ;  for  it  certainly  cannot  be  said  that  the  question  either  in 
Thellusson  v.  Woodford,  or  here  is,  whether  the  testator  has  given 
that  which  belonged  to  the  defendants  at  the  time  of  making  the 
will  or  codicils,  or  at  any  subsequent  period  of  the  testator's  life, 
which  Lord  Eldon  seems  to  have  considered  necessary,  in  order 
to  make  a  case  of  election.  It  is  perfectly  clear  that  the  question 
here  is,  as  Lord  Eldon  conceived  it  to  be  in  Broome  v.  Monk,  to 
wit:  whether  the  testator  has  devised  what  was  beyond  all  ques- 
tion his  own  at  the  time  of  his  death  as  Avell  as  some  tims  before, 
and  which  he  could  have  given  to  the  plaintiffs  for  some  time 
before,  as  well  as  at  his  death  in  despite  of  all  the  world,  if  he 
had  pleased.  This  question,  however,  we  all  know  was  answered 


505  SUPREME  COURT  [March  Term, 

(City  of  Philadelphia  t.  Davis.) 

and  settled  in  the  negative  by  the  decision  of  this  court,  in  Girard 
and  others  v.  Mayor  Aldermen  and  citizen*  of  Philadelphia^ 
(4  Raulc,  325.)  Seeing  then  that  the  present  case  does  not 
come  within  Lord  Eldon's  description  of  a  case  of  election,  nor 
yet,  as  it  appears  to  me,  within  the  outlines  of  any  of  the  cases 
decided  on  this  subject  in  England  anterior  to  our  revolution,  it 
may  be  proper  to  examine  and  see  whether  the  same  reason  exists 
in  it  for  making  it  a  case  of  election.  The  only  question  raised  in 
them  was,  whether  a  legatee  could  recover  a  legacy,  and  at  the 
same  time  hold  that  which  belonged  to  him,  but  was  expressly 
given  by  the  will  to  a  third  person.  Now  I  apprehend  that  there 
is  good  ground,  as  regards  the  intention  of  the  testator  at  least, 
which  is  admitted  upon  all  hands,  to  be  the  foundation  upon  which 
the  right  to  demand  an  election  exists,  if  at  all,  for  making  a  dis- 
tinction between  his  undertaking  .by  his  will  to  devise  a  specific, 
definite  property,  which  is  not  his  own,  the  locality,  extent  and 
value  of  which  are  all  completely  within  his  knowledge,  and 
r*"(\f~\  *immediately  under  his  view,  as  it  were,  and  that  of 
-"  undertaking  to  pass  by  his  will  all  the  real  estate  which 
he  shall  thereafter  acquire.  As  to  the  first,  it  being  fully  within 
his  knowledge  and  under  his  view,  he  is  capable  of  forming  an 
opinion  in  respect  to  it,  and  of  exercising  his  judgment  upon  it, 
ami  may  come  to  a  conclusion  in  his  own  mind,  that  it  will  suit 
the  person  to  whom  he  is  giving  it,  better  than  the  real  owner, 
and  that  that,  which  he  is  giving  to  the  latter,  is  not  only  of  more 
value,  but  will  suit  him  in  every  other  respect  better  than  what 
he  is  taking  from  him.  Under  this  view,  the  conduct  of  the  tes- 
tator becomes  rational,  and  consistent  with  what  must  be  pre- 
sumed to  be  the  first  object  with  every  testator,  to  wit:  that  of 
bettering  the  condition  of  his  devisee  or  legatee.  But  in  regard 
to  property  that  is  unknown,  and  as  yet  has  not  come  into  being, 
the  same  course  of  reasoning  cannot  be  adopted ;  nor  can,  what 
must  be  considered  the  first  and  great  object  of  the  testator,  be 
generally  attained  by  it.  lie  may  acquire  real  estate  thereafter, 
or  he  may  not ;  but  whether  he  does  or  not,  it  is  utterly  impos- 
sible that  he  can  dispose  of  it,  before  he  shall  have  acquired  it, 
from  the  same  motives,  and  under  the  same  view  and  judgment 
that  might  govern  and  direct  him  after  it  is  had.  As  the  testa- 
tor then  cannot  be  actuated  by  the  same  motives  in  disposing  of 
that  which  has  neither  locality  nor  value,  that  might  reasonably 
influence  him  in  disposing  of  that  which  has  both,  and  at  the  same 
time  belongs  to  him ;  it  would  be  wrong  to  apply  the  same  rule 
to  both  cases. 

It  is  also  worthy  of  consideration,  that,  although  our  statutes 
regulating  the  disposition  of  intestates'  estates  do  not  control  or 
restrain  men  from  giving  away  their  estates  as  they  please,  except 


1838.]  OF  PENNSYLVANIA.  506 

(City  of  Philadelphia  v.  Davis.) 

as  to  one-third  of  their  real  estates,  which  is  secured  for  life  to 
their  widows,  should  they  leave  any  at  their  deaths,  yet  they 
serve  to  show,  that  it  was  thought  the  interest  of  the  state  and 
that  the  happiness  of  its  citizens  would  be  best  promoted  by  caus- 
ing the  estates  of  persons  dying  intestate,  to  be  parted  and  divided 
equally  among  their  surviving  relatives,  with  a  view  no  doubt, 
among  other  objects,  to  preserve  equality  of  condition  in  this 
respect,  as  far  as  may  be  consistent  with  the  constitution  arid  the 
principles  of  natural  justice.  Those,  therefore,  upon  whom  these 
statutes  have  cast  the  ownership  of  a  deceased's  estate,  are  enti- 
tled to  favor  and  protection,  and  ought  not  to  be  deprived  thereo*, 
unless  by  some  known  rule  of  equal  authority  and  of  unambig- 
uous import.  Besides,  is  there  not,  I  would  ask,  an  inconsistency 
in  a  testator's  purchasing  and  taking  a  conveyance  of  real  estate 
to  himself  and  his  heirs,  for  his  own  and  their  use,  and  not  for 
the  use  of  the  devisees  named  in  his  Avill,  after  having  thereby 
previously  given  all  such  after-purchased  estate  to  them  ?  Lord 
Holt  in  Bunker  v.  Cooke,  (Fitzg.  229,  232:  Gilb.  on  Dev.  132, 
136,)  declared  it  to  be  repugnant  to  the  will ;  and  if  so,  1  think 
that  I  may  safely  add,  that  it  would  therefore  be  against  all 
*reason  to  permit  the  will  to  overrule  the  use  declared  r*~n7-i 
in  the  subsequent  deed  of  purchase. 

After  the  decision  of  Thellusson  v.  Woodford,  the  case  of 
Churchman  v.  Ireland,  (Russell  &  Mylne,  250,  s.  c.  4  Oond.  • 
English  Chan.  Rep.  412,)  came  before  Lord  Brougham,  upon  an 
appeal  from  the  decree  of  Sir  Launcelot  Shadwell,  Vice  Chan- 
cellor: in  which  he  affirmed  the  decree  of  the  Vice  Chancellor; 
deciding,  that  the  heir  at  law,  who  took  some  benefits  under  the 
will  was  bound  to -elect,  where  the  testator  had  devised  and  be- 
queathed "  all  and  singular  my  estate  and  effects  whatsoever  and 
wheresoever,  and  of  what  nature  or  kind  soever,  both  real  and 
personal,  which  I  shall  die  possessed  of,  interested  in,  or  entitled 
unto;"  and  afterwards  purchased  real  estates.  It  is  true  that  the 
decision  of  this  case  is  in  accordance  with  the  principle  laid  down 
in  Thellusson  v.  l^oodford;  but  it  is  at  variance  with  the  rule  .of 
construction,  adopted  by  Sir  John  Leach,  Master  of  the  Rolls,  in 
Johnson  v.  Telford,  (Russell  &  Mylne,  244,  s.  c.  4  Cond.  Eng. 
Ch.  Rep.  409,)  as  to  the  words  of  the  testator,  showing,  as  it 
was  contended,  an  intention  to  devise  after-acquired  real  estate, 
and  comes  in  direct  conflict  with  the  construction  put  on  similar 
words,  relative  to  the  intention  of  the  testator  in  this  respect,  by 
Sir  Thomas  Plumer,  Master  of  the  Rolls,  in  Back  v.  Kett,  where 
the  testator  by  his  will,  desired  his  executors  to  sell  whatso- 
ever real  estate  he  might  die  possessed  of,  and  afterwards 
bought  real  estate  ;  it  was  held  that  the  heir  who  took  bene- 
fits under  the  will,  was  not  bound  to  elect.  In  this  case,  Sir 


507  SUPREME  COURT  [March  Term, 

(City  of  Philadelphia  t>.  Davis.) 

Thomas  Plumer  said,  the  heir  is  not  to  be  disinherited  except 
by  express  words.  And  in  speaking  of  the  case  of  T/iel- 
luvmm  v.  Woodford,  which  was  affirjned  in  the  House  of  Lords, 
(1  Dow,  P.  C.  249,)  he  said  it  had  gone  far  enough,  and  that 
without  such  high  authority,  he  should  have  entertained  doubts 
in  it ;  in  short,  showing,  as  Lord  Brougham  very  fairly  admits, 
"  that  had  it  originally  fallen  to  him  to  decide  it,  he  would 
have  come  to  a  different  conclusion."  Churchman  v.  Ire- 
land. 

Among  the  English  cases  decided  before  the  revolution,  which 

O  O  ' 

are  the  only  cases  of  our  mother  country  that  are  regarded  here 
as  of  binding  authority,  the  Anonymous  case  in  Gilb.  Eng.  Rep. 
15,  may  seem  to  some  not  to  come  literally  within  Lord  Eldon's 
description  of  the  case  of  an  election.  According  to  the  report, 
which  is  nothing  more  than  a  bare  abstract  of  the  case,  it  would 
seem  that  where  a  testator  seized  of  two  acres,  one  in  fee- 
simple  and  the  other  in  tail,  and  having  two  sons,  devised  the 
fee-simple  to  the  elder,  who  was  the  issue  in  tail,  and  the  fee- 
tail  acre  to  the  younger;  and  the  elder  son,  upon  the  death  of 
the  testator,  entered  upon  the  fee-tail  acre,  it  was  held  by  Lord 
Cowper,  in  1709,  upon  a  bill  filed  by  the  younger  son  that  the 
elder  son  was  bound  either  to  let  the  younger  son  enjoy  the  fee- 
tail  acre,  or  otherwise  the  younger  was  entitled  to  have  an 
equivalent  out  of  the  fee-simple  acre;  and  it  was  so  decreed. 
r*rOKT  *^n  the  subsequent  case,  however,  of  White  v.  White,* 
mentioned  before,  decided  by  Lord  Bathurst,  in  March, 
1770,  which  is  the  latest  English  case  of  binding  authority,  on 
this  subject,  the  case  in  Gilbert  is  strongly  impeached,  if  not 
overruled,  unless  the  circumstance  of  the  devises  being  made  ex- 
clusively to  children  of  the  testator,  be  sufficient  to  preserve  its 
authority,  which  may  have  had  some  weight,  as  it  existed  also 
in  the  earlier  cases  of  election  above  named.  Lord  Cowper,  in- 
deed, confines  the  principle  of  election  expressly  in  Noy*  v. 
Mordavnt,  to  the  case  of  children  ;  his  words  are,  "  in  all  cases 
of  this  kind,  where  a  man  is  disposing  of  his  estate  among  hi* 
children,  and  gives  to  one  fee-simple  lands,  and  to  another  lands 
intailed  or  under  settlement,  it  is  upon  an  implied  condition  that 
each  party  acquit  and  release  the  other ;"  2  Vern.  582.  This 
circumstance  is  also  particularly  noticed  by  Lord  llardwicke,  in 
Hearle  v.  Greenbank,  (1  Ves.  307 ;)  and  again  in  Bouyhton  v. 
Bouyhton,  (2  Ves.  15,  1C,)  as  having  some  influence  in  making 
a  case,  a  case  of  election,  that  otherwise,  perhaps,  might  not  be 
so  considered.  In  White  v.  White,  the  question  was  not  be- 
tween children,  and  there  it  was  ruled  that  the  heir  in  tail, 
whose  estate  was  disposed  of  by  the  will  of  his  ancestor  to  uses 
different  from  the  intailment,  and  to  whom  the  profits  of  all  the 


1836.]  OF  PENNSYLVANIA.  508 

(City  of  Philadelphia  v.  Davis.) 

real  estate  of  the  testator,  including  lands  held  by  him  in  fee- 
simple,  were  given  during  his  life,  as  also  a  legacy  of  a  thousand 
pounds,  charged  upon  the  real  estate,  was  entitled  to  have  the 
legacy  and  the  profits  of  the  fee-simple  estate  during  his  life,  as 
well  as  the  estate  tail,  which  he  had  entered  into  after  the  death 
of  the  testator,  and  by  a  common  recovery  suffered-  for  that  pur- 
pose, had  converted  into  a  fee-simple :  and  a  decree  accordingly 
was  made  in  his  favor.  Now  it  is  very  obvious,  that  by  applying 
the  principle  of  election  to  the  cases  of  Thellusson  v.  Woodford, 
and  Churchman  v.  Ireland,  was  carrying  it  much  beyond  what 
it  would  have  been,  had  it  been  extended  to  the  case  of  White 
v.  White,  and  greatly  beyond,  as  I  have  already  said,  what 
was  ever  before  thought  of.  The  Avhole  course  of  Lord  Hard- 
wicke's  reasoning  in  Hearle  v.  G-reenbank,  as  also  in  Bouyhton 
v.  Bouyhton,  is  opposed  to  the  decisions,  in  those  two  cases 
of  Thellusson  v.  Woodford,  and  Churchman  v.  Ireland,  and 
directly  opposed,  as  it  appears  to  me,  to  the  recovery  of  the 
plaintiffs  in  this  case.  In  Hearle  v.  G-reenbank,  page  307,  he" 
says,  "  when  the  obligation  arises  from  the  insufficiency  of  the  ex- 
ecution or  invalidity  of  the  will,  there  is  no  case  where  the  lega- 
tee is  obliged  to  make  an  election,  for  there  is  no  will  of  the 
land."  So  he  again  repeats,  where  the  land  cannot  pass  by  the 
will,  the  legatee  cannot  be  called  on  to  make  an  election.  And 
in  Bouyhton  v.  Bouyhton,  as  well  as  in  Hearle  v.  G-reenbank,  he 
considers  a  will  disposing  of  the  real  estate,  but  not  executed  in 
conformity  to  the  statute,  as  no  will  in  regard  to  it,  though  good 
as  to  the  personal  estate  and  sufficient  to  give  the  legacy  to  the 
legatee;  but,  because  it  can  have  no  operation  upon  the  real 
estate,  it  is  therefore  *insufficient  to  put  the  legatee  to  r*cnq-i 
election.  Now,  is  not  all  this  directly  applicable  to  the 
case  before  us  ?  Here  the  will,  though  good  to  pass  all  the  per- 
sonal estate,  which  the  testator  had  at  the  time  of  his  death,  and 
likewise  all  the  real  estate  which  he  owned  or  had  any  interest 
in,  at  the  date  of  this  last  codicil  thereto,  yet  is  void,  invalid  and 
inoperative  on  the  very  face  of  it,  so  far  as  he  undertakes  to  dis- 
pose of  real  estate  which  he  should  purchase  or  acquire  thereafter. 
In  effect  it  is  no  will  with  respect  to  the  lands  in  question,  they 
having  been  purchased  by  the  testator  after  making  of  the  last 
codicil  to  his  will,  and  therefore,  according  to  the  reasoning  of 
Lord  Hardwicke,  the  defendants  cannot  be  required  to  make  an 
election. 

But  where  the  testator  makes  a  bequest  or  devise  annexing  in 
express  terms,  a  condition  to  it,  as  in  Streatfield  v.  Streatjield, 
and  Bouyhton  'v.  Bouyhton,  it  must  be  evident  to  the  mind  of 
every  one,  that,  as  the  donor  in  such  case,  has  the  right  to  pre- 
scribe the  terms  or  conditions,  upon  which  he  is  willing  to  bestow 

VOL.  i. — 34 


509  SUPREME  COURT.  [March  Term, 

(City  of  Philadelphia  t>.  Davis.) 

•what  belongs  to  him,  they  ought  and  must  be  complied  with  ; 
otherwise,  the  legatee  or  devisee  cannot  claim  the  gift.  But  in 
other  cases,  where  the  rule  of  election  has  prevailed,  it  is  perhaps 
somewhat  difficult  to  discover  and  comprehend  fully  the  ground 
or  reason  of  its  application.  In  Noys  v.  Mordaunt,  (2  Vern. 
682,)  it  is  said  by  Lord  Keeper  Cowper,  to  be  "  upon  an  implied 
condition,  that  each  party  acquit  and  release  the  other."  In 
Streatfield  v.  Streatfidd,  Oa.  Temp.  Talb.  183,  Lord  Talbot  says 
"  this  court  (meaning  chancery,)  compels  the  devisee,  if  he  will 
take  advantage  of  the  will,  to  take  entirely,  but  not  partially 
under  it,  there  being  a  tacit  condition  annexed  to  all  devises  of 
this  nature,  that  the  devisee  do  not  disturb  the  disposition  which 
the  devisor  hath  made,"  which  Lord  Hardwicke  construes  an 
"implied  intent,  that  whatsoever  takes  by  the  will,  shall  comply 
with  the  whole;"  (2  Ves.  14,)  or  as  he  says  in  another  part  of 
the  same  page,  "  upon  a  condition  implied  to  this  effect  by  con- 
struction of  the  court."  Lord  Eldon  seems  also  to  consider  it  as 
resting  upon  an  implied  condition,  that  the  legatee  or  devisee 
shall  part  with  his  own  estate  or  he  shall  not  take  the  bounty. 
10  Ves.  609.  In  Morris  v.  Burrows,  (2  Atk.  629,)  Lord  Hard- 
wicke speaks  of  it  as  "  depending  upon  the  equity  of  the  court, 
which  is,  that  no  person  shall  take  by  the  will,  and  at  the  same 
time  do  any  thing  that  shall  destroy  the  will."  See  also  3  Atk. 
715.  The  equity  here  meant,  as  I  apprehend,  is  an  obligation 
arising  from  rather  an  artificial  than  a  natural  construction  of 
the  will  by  the  court,  that  is  conceived  to  become  binding  on  the 
conscience  of  the  legatee  or  devisee,  to  observe  the  implied  inten- 
tion of  the  testator  whose  bounty  he  accepts,  by  fulfilling  what  is 
called  in  other  terms  the  implied  condition  annexed  by  the  con- 
struction of  the  court  and  not  by  the  testator  to  the  gift ;  and, 
though  spoken  of  as  a  condition,  it  certainly  has  not  been 
regarded  as  being  of  the  same  force  as  an  express  condition, 
because  in  Boughton  v.  Bouyliton,  where  the  testator  by  a  will 
sufficient  to  dispose  of  his  personal  estate,  but  not  being  so  in 
r*ei  A-I  *regard  to  the  rest,  for  want  of  conformity  to  the  statute 
in  its  execution,  gave  his  real  estate  to  one  of  his  chil- 
dren, and  a  contingent  legacy  of  .£1200  to  a  grandchild,  who 
became  his  heir  at  law  on  his  death,  expressly  directing,  that  if 
any  who  received  benefit  by  his  will 'should  dispute  any  part  of 
it,  they  should  forfeit  all  claim  under  it ;  and  it  was  held,  that  the 
heir  was  bound  to  elect:  yet  it  is  well  settled,  that  without 
such  express  condition,  a  will  so  defectively  executed  does  not 
impose  the  obligation  of  election  on  the  heir ;  but  that  he  is  en- 
titled, notwithstanding,  to  demand  and  receive  the  legacy,  and 
at  the  same  time,  to  take  the  real  estate  by  descent.  Hearle  v. 
Greenbank,  (3  Atk.  715  ;  1  Ves.  306,  307;)  Carey  v.  Askew, 


1836.]  OF  PENNSYLVANIA.  510 

(City  of  Philadelphia  v.  Davis.) 

(1  Cox,  241;  1  Ves.  492,  496-7;)  G-oodrich  v.  Sheddon,  (8 
Ves.  481;)  Thellusson  v.  Woodford,  (13  Ves.  223.)  Now 
where  a  condition  is  necessarily  implied  by  a  construction  in  re- 
gard to  which  there  can  be  but  one  opinion,  there  can  be  no  good 
reason  why  the  result  or  decision  of  the  court  should  not  be  the 
same  as  in  the  case  of  an  express  condition,  and  the  donee  bound 
to  make  an  election  in  the  one  case  as  well  as  the  other.  Seeing, 
however,  that  this  is  not  so,  the  true  foundation  then  of  the  obli- 
gation to  make  an  election,  must  be,  because  it  Avould  not  be  fair 
or  equitable  in  the  donee  to  accept  the  gift,  and  at  the  same  time, 
do,  any  thing  that  would  seemingly  be  in  opposition  to  what  is 
deemed  to  have  been  the  intention  or  wish  of  the  donor  in  relation 
to  it.  The  intention  of  the  donor  or  testator  ought  doubtless  to 
be  the  polar  star  in  such  cases,  and  whenever  it  appears  from  the 
instrument  itself,  conferring  the  benefit,  with  a  certainty  that  will 
admit  of  no  doubt,  either  by  express  declaration  or  words  that  are 
susceptible  of  no  other  meaning,  that  it  was  the  intention  of  the 
donor  or  testator  that  the  object  of  his  bounty  should  not  partici- 
pate in  it,  without  giving  his  assent  to  every  thing  contained  in 
the  instrument,  the  donee  ought  not  be  permitted  to  claim  the  gift 
unless  he  will  abide  by  the  intention  and  wishes  of  its  author. 
So  far,  also,  as  the  English  decisions  on  this  subject,  made  pre- 
viously to  our  revolution,  go,  I  feel  myself  bound  by  them  as  hav- 
ing become  the  rules  of  property ;  but  I  am  not  disposed  to  carry 
the  rule  of  election  further,  and  to  extend  it  to  cases,  where,  if 
we  do  not  confine  ourselves  to  the  valid  and  operative  parts  of 
the  instrument,  we'  are  likely  to  be  led  into  error,  by  endeavoring 
to  give  effect  to  an  intention  imputed  to  the  donor,  which  at  best, 
perhaps,  is  founded  upon  mere  conjecture.  In  the  case,  under 
consideration,  the  will  and  codicils  are  both  invalid  and  inopera- 
tive as  to  the  lands  in  dispute.  In  fact,  they  had  no  existence  as 
regarded  the  testator  at  the  time  of  making  his  will  or  the  codi- 
cils thereto :  he  not  having  then  even  contracted  for  the  purchase 
of  them,  rendered  it  improbable,  if  not  indeed,  impossible,  that 
his  mind  should  have  been  brought  to  bear  upon  them  and  dis- 
pose of  them  in  the  same  manner  that  he  would  have  done,  had 
they  formed  at  that  time  a  part  of  his  estate.  It  may,  therefore, 
well  be  thought  to  be  but  conjecture,  how  he  would  have  dis- 
posed *  of  them  if  he  had  made  or  republished  his  will  r*£-Mn 
after  they  became  his  property.  And  certainly,  as  Lord 
Commissioner  Eyre  has  said,  the  heirs  ought  not  to  be  conjectured 
out  of  their  rights. 

But  supposing  the  plaintiff's  had  had  the  right  upon  the  death 
of  the  testator  to  have  put  the  defendants  to  this  election,  still 
may  it  not  be  questionable  whether  they  could  recover  the  lands 
in  dispute  ?  This  right  to  recover  must  depend,  I  apprehend, 


511  SUPREME  COURT  [March  Term, 

(City  of  Philadelphia  t>.  Davis.) 

upon  what  is  meant  by  election  in  such  case,  and  the  effect  of  it. 
Now  that  the  defendants,  immediately  upon  the  death  of  the  tes- 
tator, became  invested,  with  the  title  to  the  lands,  not  only  in 
law  but  in  equity,  and  upon  that  ground  recovered  the  possession 
of  them  in  the  actions  of  ejectment  brought  by  them  for  that 
purpose,  cannot  be  denied.  Then  unless  the  receipt  of  the  lega- 
cies by  them  under  the  will  since  the  death  of  the  testator,  should 
have  created  a  forfeiture  of  their  right,  at  least  to  the  possession, 
and  have  transferred  it  to  the  plaintiffs,  I  am  unable  to  discover 
upon  what  principle  the  latter  can  claim  to  recover  the  lands. 
It  cannot  be  pretended,  that  by  the  terms  of  the  will,  the  lands 
are  given,  in  any  event,  to  the  plaintiffs.  On  the  contrary,  it 
has  been  decided,  that  the  will  or  the  codicils  thereto,  had  no 
operation  upon  them  whatever,  but  that  they  descended  by  ope- 
ration of  the  statute,  passing  intestates'  estates  to  the  defendants. 
This  would  seem  to  make  it  necessary  then,  that  there  should 
have  been  some  act  done  on  their  part,  by  agreement  or  other- 
wise, by  which  they  passed  their  right  to  the  land,  to  the  plain- 
tiffs. An  agreement  made  with  such  view,  is  out  of  the  ques- 
tion ;  none  is  even  alleged.  Then  is  the  receipt  of  the  legacies, 
considering  it  as  an  election  by  the  defendants  to  take  under  the 
will,  sufficient  to  produce  this  effect  ?  Certainly  no  decision  has 
ever  been  made,  giving  such  effect  to  it.  A  receipt  of  a  legacy 
under  the  will  has  never  been  held  to  be  a  forfeiture  of  the  right 
to  the  thing  which  is  acquired  by  the  legatee,  through  a  title 
paramount  to  the  will,  or  otherwise  than  under  it.  It  has  been  con- 
sidered at  most,  as  only  creating  an  obligation,  to  indemnify  the 
disappointed  claimant,  to  the  extent  of  the  value  of  what  was 
designed  for  him  by  the  will,  out  of  that  which  is  thereby  given 
to  the  party  electing,  if  it  should  be  sufficient ;  and  also,  as  au- 
thorizing a  court  of  equity,  with  a  view  to  secure  such  indem- 
nity, to  sequester  that  which  is  elected  to  be  so  taken  under  the 
will.  In  no  case,  however,  does  election  create  an  absolute  for- 
feiture, when  the  value  of  the  thing  elected  to  be  taken  under 
the  will,  is  more  than  sufficient  to  make  a  compensation  to  the 
disappointed  party,  equal  in  value  to  his  loss ;  for  if  there  should 
remain  a  surplus  beyond  that,  the  party  electing  is  entitled  to  it; 
indeed,  it  does  not  belong  to  a  court  of  equity,  at  any  rate,  to 
pronounce  forfeitures,  or  to  impose  penalties ;  on  the  contrary, 
it  often  relieves  from  them ;  and  that  too  in  cases  where  they 
have  been  created  by  the  express  agreement  of  the  party  himself 
seeking  relief,  through  his  neglect  to  perform  his  engagement 
r*51°1  according  t°  the  tenor  thereof.  In  these  *cases  it  is 
generally  granted,  if  the  loss  or  injury  sustained  by  a 
failure  to  fulfil  the  agreement,  be  of  a  nature  to  admit  of  com- 
pensation. In  cases  of  election  growing  out  of  wills,  where  no 


1836.]  OF  PENNSYLVANIA.  512 

(City  of  Philadelphia  0.  Davis. ) 

condition,  alternative,  or  forfeiture  is  declared  or  provided  for  in 
terms,  it  is  only  for  the  purpose  of  compelling  that  to  be  done, 
which  is  considered  barely  equitable  and  no  more,  that  a  court  of 
chancery  can  interpose  and  exercise  its  authority.  Compensa- 
tion or  indemnification  then,  I  take  it,  is  the  most  that  a  court  of 
equity  can  decree  in  such  case  ;  and  that  is  done  generally,  out 
of  the  money  or  property  given  by  the  will  to  the  party  electing, 
by  sequestering  it,  so  far  as  may  be  necessary  for  that  purpose. 
And  unless  the  disappointed  party  has  a  lien  for  his  compensa- 
tion on  this  fund,  I  am  inclined  to  think  that  he  can  have  none 
upon  any  other.  And  if  this  be  so,  I  can  perceive  no  possible 
ground  upon  which  the  plaintiffs  here  can  claim  to  recover  the 
possession  of  the  lands  in  question.  For  without  having,  at  least 
a  lien  upon  them,  in  their  favor,  there  is  not  even  the  shadow  of  a 
right  to  entitle  them  to  it.  To  hold  that  the  obligation  of  election 
gave  the  plaintiffs  a  right  to  recover  the  lands  in  question,  would 
be  carrying  it  beyond  every  thing  that  has  ever  been  thought  of, 
even  of  late  in  England.  It  is  quite  certain  that  the  defendants 
never  received  the  legacies  upon  any  agreement,  or  as  a  consider- 
ation for  surrendering  any  portion  whatever  of  their  right  to  the 
lands :  such  a  thing  could  never  have  entered  into  their  minds, 
and  of  course  their  assent  could  never  have  been  given  to  such  a 
proposition,  either  impliedly  or  otherwise  :  and  nothing  but  a  very 
ingenious  and  artificial  course  of  reasoning,  could  ever  bring  the 
mind  to  the  conclusion,  that  the  testator  could  have  contemplated 
the  requisition  of  such  assent ;  and  1  am  not  satisfied,  but  it  is  a 
stretch  of  power  on  the  part  of  a  court  of  equity,  at  all  times,  to 
interfere  with  the  rights  of  a  legatee  or  devisee  in  such  case.  It 
is  most  likely,  Lord  Commissioner  Eyre  thought  so,  when  he  said, 
"Putting  a  devisee  to  his  election,  however  just  and  reasonable  it 
may  be,  was  certainly  a  strong  operation  of  a  court  of  equity." 
(1  Ves.  jr.  523.) 

But  taking  this  case  to  be  a  case  of  election,  and  that  the 
plaintiffs  acquired  a  lien  upon  the  lands  in  dispute  by  the  de- 
fendants receiving  their  legacies,  and  under  such  lien  had  the 
right  to  retain  the  possession  of  them  until  compensation  were 
made  ;  and  beyond  this  I  think  it  is  impossible  to  raise  the  color 
of  claim  to  the  possession  of  the  lands,  may  it  not  admit  of  some 
doubt,  whether,  after  having  suffered  that  possession  to  be  re- 
covered from  them,  they  can  now  sustain  an  action  to  recover  it 
back.  Though,  generally,  I  admit  nothing  short  of  two  judg- 
ments, rendered  in  an  action  of  ejectment  between  the  same  par- 
ties, in  favor  of  the  same  one  of  them,  is  sufficient  to  form  a 
bar  to  another  action,  founded  on  the  same  claim  to  the  land  be- 
tween them,  yet  I  am  not  altogether  satisfied,  that  this  rule  ex- 
tends to  the  case  of  an  ejectment  brought  merely  *as  a  r*£-|q-i 
substitute  for  a  bill  in  equity,  to  obtain  what  in  effect  is  L 


513  SUPREME  COURT  [March  Tern,, 

(City  of  Philadelphia  «.  Davis.) 

considered  equivalent  to  a  decree  of  specific  performance,  or  the 
possession  of  the  land  as  a  pawn  or  pledge  for  the  payment  of  a 
debt  or  sum  of  money  ;  for,  it  may,  possibly,  be  thought  that  the 
only  question  presented  in  such  cases,  is  one  of  personal  duty, 
arising  out  of  a  mere  personal  obligation,  and  therefore,  accord- 
ing to  analogy,  one  decision  ought  to  settle  it.  This  question, 
however,  being  out  of  the  case,  I  intimate  no  opinion  in  regard 
to  it.  Again,  admitting  that  the  receipt  of  the  legacies  by  the 
defendants,  gave  the  plaintiffs  a  right  to  the  possession  of  the 
lands,  until  they  should  be  compensated  or  indemnified ;  quaere, 
whether,  they  being  in  the  possession  of  them  at  the  time,  ought 
not  to  have  set  that  up  as  a  defence  in  the  former  actions  of  eject- 
ment ?  or  was  it  competent  for  them  to  waive  such  equitable  de- 
fence, and  after  having  done  so,  to  make  it  the  ground  of  recovery 
of  the  possession  again  in  this  action  ?  It  may  not  be  proper  to 
attempt  an  answer  to  these  questions  before  they  arise,  which  pos- 
sibly may  never  happen  in  the  case  of  an  election,  as  it  may  not 
be  thought  advisable  to  make  the  experiment,  after  the  decision  of 
the  court  in  this  case. 

If,  however,  it  be  as  I  think  it  is,  that  the  disappointed  party 
cannot  claim  and  recover  that  which  is  held  by  the  legatee,  as 
the  lands  in  this  case  are  by  the  defendants,  under  another  and 
different  title  from  the  will,  after  having  received  the  legacy  with- 
out objection,  it  may  be  thought  that  he  ought  to  have  a  remedy 
by  a  personal  action  against  the  legatee  to  recover  from  him,  at 
least  as  much  of  the  legacy  received,  as  would  compensate  for  the 
loss.  Such  action  may  possibly  be  sustained,  but  then,  per- 
haps, it  may  be  made  a  question,  whether  all  reasonable  vigilance 
ought  not  to  be  used  by  the  plaintiff,  in  order  to  avoid  the  ne- 
cessity of  bringing  it,  by  giving  notice  within  a  reasonable  time, 
to  the  executors  not  to  pay  the  legatee,  until  the  objection  to  his 
receiving  the  legacy,  on  the  ground  of  its  being  a  case  of  election, 
shall  be  settled  and  removed ;  and  by  undertaking  at  the  same 
time  to  indemnify  and  save  the  executors  harmless,  for  withhold- 
ing payment ;  because  there  are  cases  where  an  objection  to  the 
payment  of  money  may  be  held  good  in  equity,  to  prevent  the 
receipt  of  it,  but  not  sufficient  to  enable  the  party,  who  might 
have  interposed  the  objection,  to  maintain  an  action  for  it,  after 
it  shall  have  been  paid  without  objection.  I  am  not  prepared  to 
say,  but  that  a  party  claiming  to  recover  in  such  an  action,  might 
by  his  neglect  or  acquiescence,  have  his  demand  exposed  to  this 
objection.  In  the  course  of  the  argument  it  was  insinuated,  that 
the  executors  in  such  case,  might  be  made  to  pay  the  legacy  a 
second  time,  though  no  notice  not  to  pay  it  to  the  legatee  had 
been  given  them ;  but  I  think  it  very  clear,  that  this  proposition 
is  altogether  untenable ;  for  without  notice,  they  have  not  the 
means  of  knowing  whether  it  be  a  case  of  election  or  not ;  and 


1836.]  OF  PENNSYLVANIA.  514 

(Pullenfl.  Rianhard.) 

therefore  are  not  bound  or  presumed  *to  know,  and  will     r*c-|4.-i 
stand  justified  in  paying  it  to  the  legatee  named  in  the 
will. 

Under  every  view  almost,  that  can  be  well  taken  of  the  case, 
the  Court  are  satisfied,  not  only  upon  authority,  but  upon  reason 
and  principles  of  sound  policy,  that  the  plaintiffs  are  not  entitled 
to  recover.  Judgment  must  therefore  be  entered  for  the  defend- 
ants. 

Judgment  for  defendants. 

SERGEANT,  J.,  took  no  part  in  the  decision  of  this  case. 

Cited  by  Counsel,  5  Wharton,  62 ;  3  Harris,  476  ;  9  Wright,  18. 
Cited  by  the  Court,  3  Harris,  451 ;  11  Wright,  381. 


[PHILADELPHIA,  APRIL  28,  1836.] 
PULLEN  against  RIANHARD. 

IN   ERROR. 

1.  A  house  and  lot  of  groxmd  were  conveyed,  by  deed  of  bargain  and  sale, 
to  a  trustee,  his  heirs  and  assigns,  in  trust  to  permit  S.,  the  wife  of  J., 
to  take  the  rents  and  profits  for  her  separate  use  as  if  she  were  a  feme 
sole,  so  that  the  same  should  not  be  subject  to  the  debts  of  her  husband ; 
and  after  her  death,  to  such  uses  as  she  should  appoint  by  will,  and  in 
default  of  such  appointment,  and  in  case  she  should  not  dispose  of  the 
premises  at  private  sale,  which  she  was  thereby  authorized  to  do  when- 
ever she  could  dispose  of  the  same  to  the  benefit  of  herself  and  children, 
then  to  and  for  the  use  of  such  child  or  children  as  she  should  leave,  &c . 
An  action  on  the  case  for  obstructing  a  right  of  way,  was  brought  against 
J.  and  8.  his  wife,  and  judgment  was  obtained  against  both,  under  which 
the  premises  were  levied  upon  by  the  sheriff  and  sold :  Held,  that  the 
purchaser  acquired  no  title. 

2.  Real  estate  settled  to  the  separate  use  of  S.,  a  married  woman,  was  sold 
by  the  sheriff  on  a  judgment  against  her  and  her  husband  in  an  action  of 
tort,  and  purchased  by  A.;  who  after  receiving  his  deed,  commenced 
proceeding,  under  the  act  of  1802,  before  two  justices,  to  obtain  posses- 
sion.    B.  the  trustee  of  S.,  claimed  title,  and  the  justices  stayed  proceed- 
ings.    B.  neglected  to  prosecute  his  claim  at  the  next  Court  of  Common 
Pleas  ;  and  pending  an  application  to  the  Court  to  be  allowed  to  file  the 
record  nunc  pro  tune,  an  agreement  was  signed,  headed  with  the  name 
of  A.  as  plaintiff,  and  the  husband  and  wife,  defendants,  and  entitled  as 
of  the  proceedings  before  two  justices,  and  signed  by  the  attorneys  for 
the  plaintiff  and  defendants,  and  by  B.  the  trustee ;  by  which  it  was 
agreed  that  the  question,  whether  the  plaintiff,  as  sheriff's  vendee,  was 
entitled  to  possession,  should  be  referred  to  three  gentlemen  of  the  bar ; 
and  if  it  should  be  determined,  that  he  was  so  entitled,  B.  was  to  sur- 
render possession  without  further  delay  or  controversy,  &c. :  The  ref- 
erees awarded  that  A.  as  sheriffs  vendee  was  "entitled  to  the  possession 


514  SUPREME  COURT  [March  Term, 

(Pullen  c.  Rianhard.) 

of  the  property  in  dispute."  In  ejectment  by  B.  against  A.  (who  had 
obtained  possession,)  it  was  htld,  that  this  award  was  not  conclusive  of 
the  title  to  the  premises,  so  as  to  prevent  a  recovery  by  B. 

THIS  was  a  writ  of  error  to  the  District  Court  for  the  City  and 
County  of  Philadelphia,  to  remove  the  record  of  an  action  of 
T*"1  ^1  ejectment,  *brought  by  Robert  Pullen,  trustee  of  Sophia 
•"  Johnson  against  James  Rianhard,  to  recover  possession 
of  a  messuage  and  lot  of  ground  situate  in  the  township  of  Ger- 
mantown  in  the  same  county. 

The  title  of  the  plaintiff'  was  as  follows: 

John  P.  Johnson,  under  whom  both  parties  claimed,  being  seized 
of  the  premises,  conveyed  the  same,  on  the  1st  of  July,  1824,  to 
Samuel  Castor,  who  on  the  8th  day  of  the  same  month,  conveyed 
the  same  to  John  M'Clure,  on  the  following  trusts,  viz. 

"  In  trust  nevertheless,  and  to  and  for  the  uses,  intents  and 
purposes  following,  that  is  to  say,  in  trust  to  permit  Sophia 
Johnson,  the  wife  of  John  P.  Johnson,  of  said  Germantown, 
cabinet-maker,  for  and  during  all  the  term  of  her  natural  life,  to 
occupy,  demise  and  dispose  of  the  said  hereby  granted  premises 
and  every  part  thereof,  and  to  take,  receive  and  enjoy  the  rents, 
issues  and  profits  of  the  same,  to  and  for  her  own  sole  and  sepa- 
rate use,  benefit  and  behoof,  as  if  she  was  a  feme  sole,  and  in 
such  way  and  manner  as  that  the  same  or  any  part  thereof  shall 
not  become  subject  or  liable  to  the  payment  of  the  debts  or  engage- 
ments of  her  said  husband,  and  so  that  no  present  or  future  cred- 
itor of  her  said  husband  shall  be  able  to  take,  seize  or  enjoy  the 
same  or  any  part  thereof:  she,  the  said  Sophia  Johnson,  paving 
all  the  taxes  on  the  said  hereby  granted  premises,  and  making 
all  necessary  repairs  thereof;  and  from  and  after  the  decease  of 
the  said  Sophia  Johnson,  then  to  and  for  such  uses,  intents  and 
purposes  as  she,  the  said  Sophia  Johnson,  by  any  instrument  of 
writing  in  nature  of  a  last  will  and  testament,  by  her  signed  in 
presence  of  two  or  more  witnesses,  who  shall  attest  the  same  by 
subscribing  as  witnesses,  shall  or  may,  notwithstanding  her  cov- 
erture, order,  direct,  limit  and  appoint;  and  in  case -of  no  such 
appointment,  and  in  case  the  said  Sophia  does  not  dispose  of  the 
aforesaid  premises  at  private  sale,  which  she  is  hereby  authorized 
to  do  whenever  she  can  dispose  of  the  same,  to  the  benefit  of  her- 
self and  children,  and  the  said  John  M'Clure,  his  heirs,  executors, 
administrators  and  assigns,  in  case  the  said  Sophia  should  dispose 
of  the  aforesaid  premises  at  private  sale,  are  hereby  enjoined  each 
and  every  of  them  to  execute  such  writing  or  writings  as  shall  be 
required  by  law,  then  to  and  for  the  use  and  behoof  of  all  and 
every  the  child  and  children  of  the  said  Sophia  Johnson,  born 
or  to  be  born,  who  shall  be  living  at  her  death,  to  be  divided 


1836.]  OF  PENNSYLVANIA.  515 

(Pullen  v.  Rianhard.) 

among  them  according   to  the   intestate   laws  of  this  common- 
wealth." 

John  M'Clure,  the  trustee,  having  died,  the  Supreme  Court, 
on  the  application  of  the  cestui  que  trust,  appointed  John  Bar- 
well  in  his  place  ;  and  he  also  dying,  Robert  Pullen,  the  plaintiff, 
was  substituted  in  the  trust. 

*The  defendant  claimed  to  hold  the  premises,  as  a  pur-     j-^r-j  ,»-i 
chaser  at  a  sheriff's  sale,  under  the  following  circum-     L 
stances : 

To  June  term  1826,  of  the  District  Court  for  the  City  and 
County  of  Philadelphia,  William  Hargesheimer  instituted  an 
action  on  the  case  against  John  M'Clure,  John  P.  Johnson,  and 
Sophia  Johnson,  his  wife,  and  Ludwick  Shaffer,  to  recover  dama- 
ges for  an  alleged  obstruction  of  the  plaintiff's  right  of  way. 
John  M'Clure,  one  of  the  defendants,  died  shortly  after  the  com- 
mencement of  the  action.  On  the  trial,  which  took  place  on  the 
1st  of  November,  1827,  the  jury  gave  a  verdict  against  Johnson 
and  his  wife  for  $1000,  "  if  the  obstructions  were  not  removed 
before  the  1st  day  of  January,  1828,  but  if  removed  by  that  time, 
then  for  6  cents  damages  and  6  cents  costs."  The  obstructions 
not  having  been  removed,  judgment  was  finally  entered  upon  the 
verdict  for  $1000,  and  a  Avrit  of  fieri  facias  issued,  which  was 
levied  upon  the  premises  in  dispute  in  this  action  ;  and  upon  a 
writ  of  venditioni  ezponas,  the  sheriff  sold  the  same  to  the  de- 
fendant, James  Rianhard.  After  obtaining  the  sheriff's  deed, 
Rianhard  proceeded  to  obtain  possession  of  the  premises.  For 
this  purpose  he  instituted  proceedings  before  J.  L.  Woolf  and  P. 
F.  Fritez,  Esqrs.  two  justices  of  the  peace,  under  the  act  of  6th 
April,  1802.  John  Barwell,  the  then  trustee  of  Sophia  Johnson, 
appeared  before  the  justices  and  made  the  following  affidavits  : 

"  John  Barwell,  being  duly  sworn,  saith  that  he  is  in  the  lawful 
possession  of  the  premises  described  in  the  writ  of  summons  :  that 
he  hath  not  come  into  possession  thereof,  and  doth  not  claim  to 
hold  the  same  by,  from  or  under  the  defendants,  or  either  of  them 
named  in  the  execution,  by  virtue  whereof  the  said  premises  were 
sold,  and  that  the  title  to  the  said  premises  is  disputed  and  claimed 
by  this  deponent." 

The  security  required  by  law  having  been  given,  no  further 
proceedings  took  place  before  the  justices.  Barwell,  however 
failed  to  comply  with  the  condition  of  his  recognizance  to  the 
justices,  and  did  not  prosecute  his  claim  at  the  next  Court  of 
Common  Pleas  ;  in  consequence  of  which  the  recognizance  became 
forfeited,  and  suit  was  subsequently  brought  thereon.  He  then 
applied  to  the  Court  of  Common  Pleas  for  leave  to  file  the  record 
of  the  proceedings  before  the  justices,  and  to  prosecute  his  claim 
nunc  pro  tune;  and  pending  this  application,  the  following 
agreement  was  made : 


516  SUPREME  COURT  [March  Term, 

(Pollen  t>.  Rianhard.) 

[Proceedings  before  Justices 

Woolf  and  Fritez. 
JOHN  P.  JOHNSON  &  WIFE.  ) 

It  is  agreed  that  the  question,  whether  the  plaintiff,  as  sheriff's 
vendee,  is  or  is  not  entitled  to  the  possession  of  the  property  in 
dispute,  shall  be  referred  to  William  Smith,  Esq.,  John  M. 
r*^171  Scott,  Esq.,  *and  Edward  Ingersoll,  Esq. :  and  if  it  be 
determined  by  the  said  referees,  that  he  is  so  entitled, 
the  claimant,  John  Barwell,  will  surrender  the  same  to  him  with- 
out further  delay  or  controversy :  and  if  it  be  determined  by  the 
said  referees,  that  he  is  not  so  entitled,  then  the  above  proceed- 
ings to  be  abandoned  by  the  said  plaintiff.  In  the  meanwhile  no 
further  proceedings  to  be  taken  by  either  party.  The  said 
referees  to  meet  as  early  as  convenient  to  themselves,  giving  no- 
tice to  the  counsel  who  have  signed  this  agreement.  The  said 
referees  to  have  the  same  power  as  the  jury  to  assess  damages, 
and  the  costs  to  be  paid  in  the  same  manner  as  if  the  proceedings 
had  been  determined  in  the  usual  form.  The  referees  having  in 
the  first  instance  referred  to  them  any  right  or  discretion,  which 
the  Court  of  Common  Pleas  may  have  as  to  the  filing  of  the  pro- 
ceedings nunc  pro  tune. 

G.  M.  DALLAS,  for  Defendants. 
WM.  RAWLE,  Jr.  )  «  ^  .  ,.,r 
S.CIIEW,  I  for  Plaintiffs. 

JOHN  BARWELL,  trustee  of  Sophia 
Johnson." 

On  the  27th  of  January,  1830,  the  referees  made  their  award 
in  writing  as  follows : — 

"  RIANHARD  j 

v.  V 

JOHN  P.  JOHNSON  &  WIFE.  ) 

We,  the  referees  named  in  the  annexed  agreement,  having  heard 
the  evidence  adduced  by  the  plaintiff  and  defendants,  and  the  ar- 
guments of  their  respective  counsel,  do  award,  "  that  the  plain- 
tiff, as  sheriff's  vendee,  is  entitled  to  the  possession  of  the  prop- 
erty in  dispute  :"  and  we  do  further,  in  pursuance  of  the  authority 
to  us  given,  assess  damages  against  the  defendants  for  the  unjust 
detention  of  the  premises  at  three  hundred  dollars. 

WM.  SMITH, 
JOHN  M.  SCOTT, 
EDW.  INGERSOLL." 

The  defendant,  Rianhard,  was  afterwards  put  in  possession  of 
the  premises  by  virtue  of  proceedings  again  commenced  under  the 
act  of  1802. 


1836.]  OF  PENNSYLVANIA.  517 

(Pullen  v.  Rianhard.) 

On  the  trial  of  the  present  ejectment  in  the  District  Court, 
the  jury,  by  agreement  of  counsel,  found  a  special  verdict  setting 
forth  the  conveyance,  under  which  the  plaintiff  claimed,  which 
was  stated  to  be  "for  a  good  and  lawful  consideration,"  and  the 
other  circumstances  above  mentioned ;  and  concluded,  "  The  jury 
find  for  the  plaintiff  with  6  cents  damages  and  6  cents  costs,  if 
the  law  be,  that  *the  interest  and  right  of  the  cestui  que  r*z~\  o-\ 
trust  did  not  pass  by  the  sheriff's  deed  to  the  defendant,  *• 
and,  also,  th.at  the  submission  and  award  given  in  evidence,  do 
not  bar  the  plaintiff  in  this  ejectment :  but  if  the  law  be  with  the 
defendant  on  either  of  these  points,  then  they  find  for  the  de- 
fendant." 

The  District  Court  rendered  judgment  for  the  defendant  on  this 
verdict ;  and  the  plaintiff  took  a  Avrit  of  error ;  and  on  the  return 
of  the  record,  assigned  the  following  errors : 

"1.  The  judgment  should  have  been  for  the  plaintiff  and  not 
for  the  defendant. 

2.  The  interest  and  right  of  the  cestui  que  trust  did  not  pass, 
by  the  sheriff's  deed,  to  the  defendant. 

3.  The  submission  and  award  given  in  evidence,  did  not  bar  the 
plaintiff  in  this  ejectment." 

Mr.  Randall  and  Mr.  Dallas,  for  the  plaintiff  in  error. 

1.  The  defendant  claims  to  hold  this  property  as  a  purchaser 
at  sheriff's  sale,  of  the  interest  of  Mrs.  Johnson.  This  is  the 
only  ground  for  his  claim.  Johnson,  the  husband,  had  no  in- 
terest in  it,  having  conveyed  it  to  Castor  more  than  three  years 
before  the  judgment  against  him.  Fraud  in  the  conveyance  is 
negatived  by  the  special  verdict.  The  question  then  is,  whether, 
upon  a  judgment  against  a  husband  and  wife  in  an  action  for  a 
tort,  the  separate  real  estate  of  the  wife  can  be  taken  in  execu- 
tion. There  is  no  authority  whatever  to  support  the  affirmative 
of  this  proposition.  The  English  cases  are  all  collected  in 
Clancy ;  and  although  it  is  difficult  to  collect  from  them  a  satis- 
factory rule  with  respect  to  the  contracts  of  a  married  woman  in 
regard  to  her  separate  estate,  yet  they  afford  no  support  to  the 
doctrine  on  the  other  side.  Whatever  may  be  the  state  of  the 
law  there,  and  in  New  York,  since  the  case  of  The  Methodist 
Church  v.  Jacques,  (3  Johns.  C.  R.  108,)  the  rule  is  placed  on  a 
safe  and  intelligible  ground  in  Pennsylvania  by  the  case  of  Lan- 
caster v.  Dolan,  (1  Rawle,  231,)  where  it  was  held  by  this  Court, 
that  a  feme  covert,  in  respect  to  her  separate  estate,  is  to  be 
deemed  a  feme  sole  only  to  the  extent  of  the  power  clearly  given 
by  the  instrument,  by  which  the  estate  is  settled,  and  has  no 
right  of  disposition  beyond  it.  That  case  has  sometimes  been 
doubted  in  other  Courts,  but  certainly  without  reason.  [GiBSON, 


SUPREME  COURT  [March  Term, 

(Pullen  v.  Rianhard.) 

C.  J.  We  have  had  occasion  lately  to  reconsider  the  principle  of 
that  case,  and  it  has  been  distinctly  re-affirmed.  We  see  no  rea- 
son for  deviating  in  any  degree  from  the  rule  there  laid  down.] 
Taking  that  case  then  to  be  the  settled  law,  it  must  be  decisive  of 
this  question.  The  deed  under  which  the  plaintiff  claims  to  re- 
cover, gives  the  rents  and  profits  merely  to  Mrs.  Johnson  for  the 
terra  of  her  life,  with  a  power  to  dispose  of  the  estate  during  her 
^e'  "f°r  the  benefit  of  herself  *and  children,"  and  to 
appoint  it  by  will.  There  is  no  authority  to  subject  it 
to  her  husband's  debts,  or  to  make  it  liable  for  his  torts  or  her 
own.  Clearly  then,  if  she  had  made  a  disposition  of  the  estate  to 
pay  off  this  judgment,  it  would  be  invalid.  A  fortiori  must  an 
adversary  proceeding  be  a  nullity  as  respects  this  estate.  If  it 
could  be  made  liable  in  any  way,  the  trustee  ought  to  have  been 
made  a  defendant ;  yet,  although  M'Clure  was  joined  at  first,  after 
his  death  the  succeeding  trustee  was  not  substituted  in  the  action. 
2  Bos.  &  Pul.  93. 

2.  The  submission  and  award  related  merely  to  the  question 
of  f>osse«ni'>n,  and  are  therefore  not  binding  upon  the  title.  The 
reference,  if  it  was  made  in  a  judicial  proceeding,  was  in  the  case 
before  the  justices,  under  the  act  of  1802 ;  the  object  of  which 
was  to  get  possession.  The  referees  had  no  power  beyond  that 
of  the  justices.  Lennox  v.  MlCall,  (3  Serg.  &  R.  104;)  Simp- 
*m  v.  Ja<'lc,  (13  Serg.  &  R.  279 ;)  Barfiman  v.  Reiyart,  (3  Penn. 
Rep.  207;)  Gratz  v.  Gratz,  (4  Rawle,  437;)  Baynev.  Gailor, 
(3  Watts,  301.)  If  the  submission  is  to  be  considered  at  common 
law,  then  not  having  been  entered  into  by  the  parties  themselves, 
it  is  void.  At  all  events  the  agreement  cannot  bind  Mrs.  John- 
son. In  Gratz  v.  Phillip*,  (1  Penn.  Rep.  333 ;)  two  of  the 
Judges  were  of  opinion,  that  &feme  covert  was  not  bound  by  her 
husband's  agreement.  [GiBSON,  C.  J.  The  Court  was  equally 
divided  on  that  point,  when  the  case  first  came  up.  Afterwards 
Judge  Kennedy,  who  had  come  on  the  bench  in  the  interval, 
joined  in  the  opinion  which  I  expressed,  and  which  is  reported  in 
1  Penn.  Rep.  357,  that  the  agreement  was  not  binding  on  the 
woman.] 

Mr.  Clew  and  Mr.  Jlawh,  for  the  defendants  in  error:— 
1.  If  the  law  be  as  contended  for  on  the  other  side,  a  married 
woman  with  separate  property,  is  in  this  state,  to  be  considered 
out  of  the  reach  of  justice,  and  may  commit  torts  with  impunity. 
In  England,  it  is  true,  her  person  may  be  taken  in  execution  for 
a  tort  committed  jointly  with  her  husband;  but  here  it  would 
seem  that  her  person  is  exempt.  The  act  of  1819  declares,  that 
no  female  shall  be  arrested  or  imprisoned  for  any  debt.  [KEN- 
NEDY, J.  That  act  is  expressly  confined  to  debts  contracted, 


1836.]  OF  PENNSYLVANIA.  519 

(Pullen  v.  Rianhard.) 

has  never  been  supposed  Hto  extend  to  torts.]  Then  the  act  of 
1807  forbids  the  issuing  of  a  ca.  sa.  where  the  defendant  has  no 
real  or  personal  estate.  [KENNEDY,  J.  That  is,  real  or  personal 
estate  which  may  be  taken  in  execution  upon  the  judgment.] 
The  law  ought  not  to  favor  such  trusts,  if  they  are  to  go  this 
length.  The  principle  of  all  the  cases  is  that  a  feme  covert,  with 
separate  property,  is  to  be  considered  &feme  sole.  Clancy.  282; 
and  Newlin  v.  Newlin,  (1  Serg.  &  R.  275.)  By  this  deed  she 
has  the  power  of  sale,  and  a  power  of  appointment  by  will.  With 
these  powers,  she  is  to  be  considered  *as  possessed  of  r*con-i 
the  absolute  estate.  Why  should  not  her  estate — 
whether  it  be  a  life  estate  or  fee  simple — be  bound  by  a  judg- 
ment ?  It  is  settled,  that  a  judgment  in  Pennsylvania  is  a  lien  on 
an  equitable  interest,  and  indeed  on  every  kind  of  interest  in  land. 
Burd  v.  Dansdale,  (2  Binn.  91  ;)  Read  v.  Morrison,  (12  Serg. 
&  R.  21.)  In  Savoy  v.  Jones,  (2  Rawle,  343 ;)  a  lien  for  build- 
ing, was  held  to  exist  as  against  afeme  covert  and  remainder-man. 
[GiBSON,  C.  J.  That  was  a  proceeding  in  rem,  by  the  express 
direction  of  an  act  of  assembly.]  . 

2.  The  submission  was  of  the  question  of  title,  and  the  award 
ought  to  be  binding  and  conclusive.  It  is  true,  that  proceedings 
before  two  justices  relate  to  the  obtaining  possession,  but  as  soon 
as  an  affidavit  is  made,  and  the  cause  is  removed  to  the  Common 
Pleas,  it  becomes  an  action  of  ejectment,  and  the  question  of  title 
is  involved.  When  the  submission  was  made,  the  cause  had  been 
dismissed  by  the  justices,  on  the  ground  that  the  title  to  the 
property  was  claimed  by  the  trustee.  The  reference  was  to  three 
gentlemen  of  the  bar ;  and  it  is  not  to  be  supposed  that  the  mere 
question  of  possession  was  referred  to  them.  [ROGERS,  J.  It 
appears  to  me  that  it  lies  on  you  to  show  affirmatively,  that  the 
title  was  in  question.  We  have  always  assimilated  the  proceed- 
ings to  the  action  of  ejectment,  when  they  have  been  transferred 
to  the  Common  Pleas.  KENNEDY,  J.  The  argument  would  give 
to  these  proceedings  greater  force  and  effect,  than  an  award  in 
action  of  ejectment,  which,  under  the  act  of  1705,  is  equivalent 
to  the  verdict  of  a  jury,  but  no  more.]  There  was  no  action  in 
Court  at  the  time  of  the  submission ;  which  therefore  is  to  be 
considered  as  at  common  law,  and  the  award  in  such  cases  is  held 
to  be  conclusive.  Davis  v.  Harvard,  (15  Serg.  &  R.  165 ;)  Zeigler 
v.  Zeigler,  (2  Serg.  &  R.  289 ;)  Watson  on  Awards,  8 ;  Kyd  on 
Awards,  381 ;  Shepperd  v.  Ryan,  (15  Johns.  Rep.  497  ;)  Burton 
v.  Todd,  (3  Johns.  Rep.  368.)  It  is  true  that  the  agreement  was 
signed  by  the  attorneys,  but  it  was  ratified  by  the  parties  after- 
wards ;  and  whatever  may  be  the  law  as  to  the  right  of  the  hus- 
band to  bind  the  wife,  in  this  case  the  agreement  was  signed  by 
her  trustee,  who  was  her  legal  representative.  3  Viner,  62,  tit. 


520  SUPREME  COURT  [March  Term, 

(Pullen  v.  Rianlianl.) 

Arbitration ;  1  Com.  Abr.  384,  tit.  Arbitrament,  D.  2,  E.  7 ;  3 
Caine's  Rep.  250;  Somers  v.  Balabreya,  (1  Dall.  164;)  Jackson 
v.  Graham,  (2  Caine's  Rep.  188 ;)  Finch  v.  Dalton,  (2  Strange's 
Rep.  1237  ;)  Lanystaft  v.  Eain,  (1  Wilson's  Rep.  149.) 

The  opinion  of  the  Court  was  delivered  by 

KENNEDY,  J. — The  chief  question  here,  is  settled  by  the  prin- 
ciples laid  down  in  the  case  of  Lancaster  v.  Dolan,  (1  Rawle, 
231.)  In  that  case,  the  conveyance  to  the  trustees,  was  upon 
trust  "  to  permit  the  party,  (who  at  the  time  was  a  feme  sole,  but 
r*roi-i  contemplated  *being  married,)  to  use,  improve,  occupy, 
possess  and  enjoy ;  and  to  receive  all  and  singular,  the 
rents,  issues  and  profits,"  and  it  was  considered  that  the  trustees 
took  the  estate  with  the  use  executed.  The  Chief  Justice  who 
delivered  the  opinion  of  the  Court  says,  "  a  use  thus  limited  to 
any  other  than  a  married  woman  or  feme  in  contemplation  of 
marriage,  would  be  executed ;  but  it  is  immaterial  whether  the 
trust  be  to  pay  a  married  woman  the  profits,  or  to  permit  her  to 
receive  them,  it  being  necessary  to  a  separate  provision,  that  the 
legal  estate  should  remain  in  the  trustees,  to  prevent  the  husband 
from  taking  the  profits,  and  defeating  the  very  object  of  the  con- 
veyance."  It  is  certainly  true,  that  a  distinction  has  been  made 
between  a  devise  to  a  person  to  pay  over  the  rents  and  profits  to 
another,  and  a  devise  in  trust  to  permit  another  to  receive  the 
rents  and  profits.  In  the  first  case  it  lias  been  held  that  the  legal 
estate  should  continue  in  the  first  devisee,  so  that  he  might  per- 
form the  trust,  because  without  having  the  control  of  the  estate, 
he  could  not  receive  the  rents  and  pay  them  over  as  directed ; 
Neville  v.  Saunders,  (1  Vern.  415.)  13ut  in  the  second  case,  it 
has  been  adjudged  that  the  legal  estate  is  vested  by- the  statute  of 
uses,  in  the  person  who  is  to  receive  the  rents.  Bouyhton  v. 
Lanyley,  (2  Ld.  Raym.  873.)  This  distinction,  however,  as  the 
Chief  Justice  has  said  in  Lancaster  v.  Dolan,  does  not  exist  in 
the  case  of  &femc  covert,  where  the  estate  is  conveyed  or  devised 
to  trustees  for  her  separate  use.  The  courts  in  such  case  will,  if 
possible,  construe  the  grant  or  devise,  so  as  to  vest  the  legal  estate 
in  the  trustees,  for  the  purpose  of  carrying  into  execution,  in  the 
most  effectual  manner  practicable,  the  intention"  of  the  donor. 
ffarton  v.  Harton,  (7  Term.  Rep.  648  ;)  1  Cruise's  Dig.  tit.  12, 
Trust,  ch.  1,  pi.  15,  pa^e  456,  and  pi.  19,  page  457.  As  to  the 
intention  of  the  donor  in  this  case,  there  can  be  but  one  opinion 
respecting  it.  It  is  most  unequivocally  declared  to  be  to  give 
the  wife  the  separate  use  and  benefit  of  the  estate  during  her 
natural  life,  without  subjecting  it  to  the  control  of  her  husband, 
or  to  liability  in  any  way  whatever,  for  the  payment  of  his  debts. 
This  being  the  intention  expressed  in  the  deed,  it  is  manifest  that 


1836.]  OF  PENNSYLVANIA.  521 

(Pullen  v.  Rianhard.) 

it  would  be  entirely  defeated,  if  it  were  to  be  held  that  the  use 
was  executed  in  the  wife ;  for  this  would  be  putting  the  estate 
under  the  control  and  direction  of  her  husband,  so  as  to  enable 
him  to  take  the  rents  in  despite  of  her,  and  to  dispose  of  them  as 
he  pleased.  The  design,  therefore,  of  the  donor,  can  only  be 
carried  into  effect,  by  considering  the  legal  estate  as  vested  under 
the  deed  in  the  trustee.  That  this  was  intended,  is  still  further 
indicated  by  the  clause  giving  the  wife  the  power  to  dispose  of  it 
for  the  benefit  of  herself  and  children,  which  requires  the  trus- 
tees, in  case  of  such  disposition  being  made  by  her,  to  execute 
such  writing  as  should  be  required  by  law  to  carry  it  into  effect ; 
which  could  be  of  no  avail,  and  was  unnecessary,  unless  he 
thought  he  was  investing  him  with  the  legal  estate.  ^Seeing  then 
that  the  legal  estate  became  thus  vested  in  the  trustee  and  not  in 
the  wife  or  *her  husband,  how  could  it  be  taken  in  execu-  r+^on 
tion,  and  sold  as  their  property,  under  a  judgment  "- 
against  them  ?  To  this,  it  has  been  answered,  that  the  equitable 
estate,  at  least,  was  in  the  wife  in  the  same  manner  as  if  she  had 
been  a  feme  sole  ;  and  that  any  interest  in  land  in  Pennsylvania, 
whether  of  a  legal  or  equitable  nature,  is  liable  to  be  taken  in 
execution.  That  this  latter  branch  of  the  proposition,  when  such 
interest  is  not  restricted  to  a  special  use  in  a  limited  form,  may 
be  true  generally,  cannot  perhaps  be  denied.  But  here,  admitting 
the  wife  to  have  had  an  equitable  interest,  it  was  only  to 
receive  the  rents  or  profits  of  the  estate  for  her  own  private  and 
separate  support  and  maintenance  ;  and  in  case  she  sold  or  rather 
contracted  for  a  sale  of  the  estate  under  the  authority  given  her 
in  the  deed,  then  to  receive  the  proceeds  thereof,  for  the  benefit 
of  herself  and  children,  without  being  subject  to  the  control  or 
authority  of  her  husband  in  any  respect  whatever.  The  power 
of  the  trustee 'over  the  estate  was  interposed  between  it  and  the 
husband,  so  as  to  guard  and  protect  it  for  her  benefit  against  any 
act  of  his  being  made  to  affect  it,  either  directly  or  consequentially. 
Now  the  judgment  under  which  the  sale  was  made,  or  the  cause 
of  action  upon  which  it  was  founded,  does  not  appear  to  have  had 
any  connection  whatever,  with  the  support,  comfort,  maintenance 
or  benefit,  of  either  the  wife  or  her  children  ;  but  on  the  contrary, 
it  seems  to  have  been  for  a  tort  committed  by  the  husband  and 
wife  jointly  ;  in  which  she  may  be  fairly  presumed  to  have  joined 
under  force  of  his  authority  ;  which  would  in  effect  be  subjecting 
the  estate  to  the  will  of  the  husband,  contrary  to  the  tenor  of  the 
deed  creating  the  trust,  and  the  intention  of  its  author,  if  it  were 
to  be  held  liable  to  redress  the  party  injured  by  such  acts.  Be- 
side, as  it  is  impossible  to  conceive  that  the  wife  could  have 
derived  any  benefit  from  the  transaction  upon  which  the  judg- 
ment was  founded,  it  is  difficult  even  in  an  equitable  point  of 


522  SUPREME  COURT  [March  Term, 

(Pullen  v.  Rianhard.) 

view,  to  discover  any  good  ground  upon  which  the  sale  can  be 
supported  ;  because,  I  take  it,  that  the  right  to  take  in  execution 
a  mere  equitable  interest  in  lands  is  rather  founded  upon  princi- 
ples of  equity  and  natural  justice  ;  inasmuch  as  it  cannot  be  done 
at  law  in  England,  whence  we  derived  our  principles  of  jurispru- 
dence. I  however,  do  not  wish  to  be  understood  as  saying  that 
the  wife  was  not  liable  to  be  sued  with  her  husband,  for  their  joint 
wrongful  act ;  because  by  law,  she  undoubtedly  may  in  many 
cases ;  see  Com.  Dig.  tit.  Baron  &  Feme.  (Y. ;)  Draper  v.  Fulkes, 
(Yev.  166,  in  Mr.  Metealf's  note  ;)  2  Saund.  on  PI.  &  Evi.572; 
but  merely  to  say  that  in  a  moral  and  conscientious  point  of  view, 
the  blame  chiefly  rests  with  him ;  for  if  not  committed  in  obedi- 
ence to  his  authority,  he  could  and  ought  to  have  restrained  her 
as  well  as  himself  from  doing  it.  It  is  clear,  therefore,  that  to 
hold,  that  the  sale  made  under  the  judgment  in  this  case,  divested 
the  trustee  of  the  estate,  and  extinguished  the  trust,  would  be  to 
frustrate  the  sole  and  entire  object  of  its  author ;  and  to  permit 
r**»2TI  *ne  es^e  *°  ke  disposed  of  in  a  manner  *diflferent,  as 
J  well  as  appropriated  to  uses  altogether  foreign  from  that 
authorized  and  prescribed  by  the  deed  of  trust ;  which  would  be 
overruling  what  is  laid  down  in  Lancaster  v.  Dolan;  that  even 
the  cestni  que  trust  herself,  cannot  exercise  an  authority  over  the 
estate,  so  as  to  divert  it  from  the  defined  object  of  the  trust, 
further  than  she  is  expressly  empowered  to  do  so  by  the  terms 
of  the  deed ;  and  then  only  in  the  manner  and  form  prescribed 
by  it. 

This  brings  us  to  the  conclusion,  that  the  plaintiff  is  enti- 
tled to  recover,  unless  he  be  estopped  by  the  award  of  the  arbi- 
trators. 

The  submission  under  which  the  award  was  made,  has  express 
reference  to  a  summary  proceeding  commenced  before  two  jus- 
tices of  the  peace,  therein  named,  by  the  defendant  as  a  pur- 
chaser at  sheriff's  sale  of  the  property  in  dispute  ;  which  could 
only  have  been  instituted  under  the  act  of  the  5th  of  April,  1802, 
entitled,  "  An  act  to  enable  purchasers  at  sheriff's  and  coroner's 
sales  to  obtain  possession."  According  to  the  terms  of  the  sub- 
mission, the  question  was,  "  whether  the  plaintiff  (that  is  the  de- 
fendant, who  was  the  plaintiff  in  that  proceeding,)  as  sheriff''* 
vendee  is,  or  is  not,  entitled  to  the  possession  of  the  property  in 
dispute."  It  is  therefore  fairly  inferrible  that  the  only  question 
submitted  to  the  decision  of  the  arbitrators,  was,  whether  agree- 
ably to  the  provisions  of  the  act,  the  plaintiff  in  the  proceed- 
ing, commenced  by  him  under  it,  was  entitled,  he  having  the 
sheriff's  deed  for  it,  duly  acknowledged  in,  and  certified  under 
the  seal  of  the  proper  court,  to  recover  the  possession.  Now  it 
is  pretty  obvious  from  the  preamble  of  the  act,  that  the  great 


1836.]  OF  PENNSYLVANIA.  52'3 

(Pullen  v.  Rianhard.) 

object  for  passing  it,  was  to  put  the  purchaser  at  sheriff's  sale,  in 
possession  of  the  land  bought  by  him,  without  any  unreasonable 
delay ;  and  that  too,  whether  the  sale  was  valid  or  not,  so  he  had 
a  deed  for  it,  acknowledged  and  certified  as  mentioned  above ; 
because  from  the  inability  generally  of  the  owners  of  lands,  so 
sold,  to  compensate  the  purchasers  at  sheriffs'  sales,  for  the  in- 
jury and  loss  arising  from  the  great  delay  that  attended  the  re- 
covery of  the  possession  in  ejectment,  which  was  the  only  remedy 
then  in  being,  and  one  where  the  regularity  and  validity  of  the 
sales  could  be  investigated  and  decided  on ;  the  latter  had  fre- 
quently sustained  great  damage,  and  been  put  to  much  expense 
without  the  possibility  of  remuneration ;  but  still,  leaving  the 
owner  of  the  land  after  he  should  be  evicted  from  possession  by 
this  proceeding,  to  bring  his  action  of  ejectment  without  preju- 
dice, and  thus  have  the  validity  of  the  sale  tested.  This  is  de- 
monstrated by  the  terms  of  the  first  section  of  the  act,  which 
makes  the  sheriff's  deed,  in  such  summary  proceeding,  if  duly 
acknowledged  in  and  certified  under  the  seal  of  the  proper  court, 
conclusive  evidence  of  the  sale ;  and  further  provides,  that  no 
certiorari,  which  may  be  issued  to  remove  such  proceedings,  shall 
be  a  supersedeas,  or  have  any  effect  to  prevent  or  delay  the  de- 
livery of  the  possession.  A  judgment  in  a  proceeding  under  this 
act,  against  the  defendant,  is  not  even  equivalent  in  its  effect  to 
a  *judgment  in  ejectment,  though  it  seemed  to  be  doubted  r+coj.-] 
by  the  counsel  for  the  defendant,  Avhether  it  was  not  con-  *- 
elusive.  The  whole  scope  and  design  of -the  act,  as  may  be 
plainly  collected  from  the  several  parts  of  it,  show  clearly,  that  such 
judgment  ought  not  to  be  any  bar  or  impediment  to  the  mainte- 
nance of  as  many  actions  of  ejectment  afterwards,  between  the 
parties,  as  if  there  never  had  been  a  proceeding  under  the  act. 
Indeed,  it  would  have  been  unjust,  had  it  provided  otherwise ; 
for  the  title  to  the  land,  or  the  validity  of  the  sheriff's  sale,  can- 
not be  brought  in  question 'or  inquired  into.  Considering  then, 
the  arbitrators  as  substituted  for  the  justices  and  the  inquest, 
for  the  purpose  of  passing  upon  the  defendant's  right  to  the  pos- 
session under  his  sheriff's  deed,  upon  the  same  ground  that  the 
justices  and  the  inquest  should  have  done,  which  I  am  rather  in- 
clined to  think,  meets  the  design  and  intention  of  the  parties  best, 
the  award  ought  not  to  have  any  other  or  greater  effect  than  a 
judgment  rendered  by  the  justices  and  the  inquest ;  which  would 
have  had,  as  I  have  shown,  no  effect  in  barring  the  plaintiff  here 
of  his  right  to  recover.  But,  even  supposing  the  submission  had 
been  intended  to  embrace  the  title  to  the  land  between  these  par- 
ties, and  that  it  is  to  be  considered,  as  a  submission  and  an  award 
at  common  law,  it  does  not  appear  that  they  all  gave  their  assent 
to  the  submission.  Without  this,  the  award  cannot  be  considered 
VOL.  i. — 35 


524  SUPREME  COURT  [March  Term, 

(Pullen  v.  Rianhard.) 

as  possessing  any  binding  effect  whatever.  Sophia  Johnson,  the 
cettui  que  trust,  who  had  certainly  a  much  greater  interest  in  the 
matter  than  any  other,  never  signed  or  assented  to  the  submission. 
For  although  it  appears  to  have  the  name  of  a  gentleman  of  the 
bar  to  it,  as  attorney  for  the  defendants,  meaning  Johnson  and  his 
wife,  who  are  set  down  as  the  defendants  in  the  caption  to  the 
submission,  yet  it  does  not  appear,  that  he  had  any  authority  from 
the  wife  to  do  this.  It  may  and  most  likely  was  done  at  the  in- 
stance of  the  husband ;  which  would  not  bind  her  in  a  common  law 
submission  in  such  case.  But  this  form  of  signing  the  submission 
among  other  things,  also  tends  to  show  that  it  was  rather  con- 
sidered as  a  continuation  of  the  same  proceeding,  and  for  the  same 
end  with  that  commenced  before  the  two  justices  of  the  peace. 
Upon  the  whole,  we  are  satisfied,  that  the  judgment  of  the  Dis- 
trict Court  ought  to  be  reversed,  and  that  judgment  here  ought  to 
be  rendered  for  the  plaintiff. 

Judgment  for  the  plaintiff. 

Cited  by  Counsel,  3  Wharton,  312  ;  4  Id.  449  ;  5  Id.  122  ;  10  Watts,  224  ; 
7  Watts  &  Sergeant,  346 ;  7  Barr,  487 ;  5  Harris,  437 ;  11  Casey,  136 ;  8 
Wright,  227  ;  7  P.  F.  Smith,  510. 

Cited  by  the  Court,  10  Wright,  399  ;  Brightly,  141. 

See  also,  2  Wharton,  11. 


END  OF  MARCH  TERM,  1836. 


APPENDIX. 


[APRIL,  1836.] 
THE  COMMONWEALTH  v.  EARLE.* 

1.  It  is  not  a  sufficient  reason  for  allowing  a  writ  of  error,  after  conviction 
upon  an  indictment  for  murder  by  poison,  that  the  indictment  did  not 
aver  that  the  prisoner  knew  the  substance  employed  to  be  a  deadly  poi- 
son ;  nor  that  the  indictment  did  not  aver  that  the  poison  was  given  to 
the  deceased  by  the  prisoner  or  any  one  else. 

2.  On  an  indictment  for  murder,  perpetrated  by  means  of  poison,  a  verdict 
finding  the  prisoner  "  Guilty  in  manner  and  form  as  stated  in  the  indict- 
ment, "  is  a  conviction  of  murder  in  the  first  degree,  and  sufficient  to  au- 
thorize the  judgment  of  death. 

AT  a  Court  of  Oyer  and  Terminer  held  at  Williamsport  for 
the  County  of  Lycoming,  at  November  Term,  1835,  John  Earle 
was  arraigned  upon  the  following  indictment : 

"  Lycoming  County,  ss. 

The  Grand  Inquest  of  the  Commonwealth  of  Pennsylvania, 
inquiring  for  the  body  of  the  county  of  Lycoming  aforesaid, 
upon  their  oaths  and  affirmations  respectively  do  present,  that 
John  Earle  late  of  Lycoming  County  aforesaid,  laborer,  not 
having  the  fear  of  God  before  his  eyes,  but  being  moved  and 
seduced  by  the  instigations  of  the  devil,  and  of  his  malice  afore- 
thought, wickedly  contriving  and  intending  a  certain  Catherine 
Earle,  with  poison,  wilfully,  feloniously  and  of  his  malice  afore- 
thought to  kill  and  murder,  on  the  fourteenth  day  of  October, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  thirty- 
five,  and  on  divers  other  days  and  times  between  the  said  four- 
teenth day  of  October  in  the  year  last  aforesaid,  and  the  seven- 
teenth day  of  October  in  the  year  last  aforesaid,  with  force  and 
arms  at  Lycoming  County  aforesaid,  did  knowingly,  wilfully  and 
feloniously,  and  of  his  malice  aforethought,  put,  mix  and  mingle 
certain  deadly  poison,  to  wit,  white  arsenic,  in  certain  chocolate 
which  had  been  at  divers  days  and  times  during  the  time  afore- 
said prepared  for  the  use  of  the  said  Catherine  Earle,  to  be 

*  I  have  been  favored  by  the  Chief  Justice  with  the  materials  for  the 
report  of  this  case,  which  it  is  believed  will  be  interesting  to  the  profes- 
sion.— REP. 


526  SUPREME  COURT  [Appendix. 

(Commonwealth  «.  Earle.) 

T*^9fi1  drunk  by  her  *  the  said  Catherine  Earle;  he  the  said 
-"  John  Earle  then  and  there  well  knowing  that  the  said 
chocolate  with  which  he  the  said  John  Earle  did  so  mix  and  min- 
gle the  deadly  poison  as  aforesaid,  was  then  and  there  prepared 
for  the  use  of  the  said  Catherine  Earle,  with  intent  to  be  then  and 
there  administered  to  her  for  drinking  the  same ;  and  the  said 
chocolate  with  which  the  said  poison  was  so  mixed  as  aforesaid, 
afterwards  to  wit,  on  the  said  fourteenth  day  of  October  in  the 
year  last  aforesaid,  and  on  the  said  other  days  and  times,  at  Ly- 
coming  county  aforesaid,  was  delivered  to  the  said  Catherine  Earle 
to  be  then  and  there  drunk  by  her ;  and  the  said  Catherine  Earle 
not  knowing  the  said  poison  to  have  been  mixed  with  the  said 
chocolate,  did  afterwards,  to  wit,  on  the  said  fourteenth  day  of 
October  in  the  year  last  aforesaid,  and  on  the  said  divers  other 
days  and  times  there,  drink  and  swallow  down  into  her  body, 
several  quantities  of  the  said  poison  so  mixed  as  aforesaid  with 
the  said  chocolate ;  and  the  said  Catherine  Earle,  of  the  poison 
aforesaid,  and  by  the  operation  thereof,  on  the  said  fourteenth 
day  of  October  in  the  year  last  aforesaid,  at  Lycoming  County 
aforesaid,  became  sick  and  greatly  distempered  in  her  body ;  of 
which  said  sickness  and  distemper  of  body,  occasioned  by  the 
drinking,  taking  and  swallowing  down  into  the  body  of  the  said 
Catherine  Earle  of  the  poison  aforesaid,  so  mixed  and  mingled  in 
the  said  chocolate  as  aforesaid,  she  the  said  Catherine  Earle,  from 
the  said  several  days  and  times  on  which  she  had  so  drunk  and 
swallowed  down  the  same  as  aforesaid,  until  the  sixteenth  day  of 
October  in  the  year  last  aforesaid,  at  Lycoming  County  afore- 
said, did  languish,  and  languishing  did  live :  on  which  said  six- 
teenth day  of  October,  in  the  year  last  aforesaid,  at  Lycoming 
county  aforesaid,  she,  the  said  Catherine  Earle,  of  the  poison 
aforesaid,  so  taken,  drunk  and  swallowed  down  as  aforesaid, 
and  of  the  said  sickness  and  distemper  thereby  occasioned  did 
die.  And  so  the  inquest  aforesaid,  upon  their  oaths  and  affirma- 
tions respectively  as  aforesaid,  do  say,  that  the  said  John  Earle, 
her  the  said  Catherine  Earle,  in  the  manner  and  by  the  means 
aforesaid,  then  and  there  feloniously,  wilfully,  and  of  his  malice 
aforethought  did -kill  and  murder,  contrary  to  the  form  of  the 
Act  of  General  Assembly  of  this  Commonwealth  in  such  case 
made  and  provided,  and  against  the  peace  and  dignity  of  the 
Commonwealth  of  Pennsylvania. 

And  the  Jurors  aforesaid,  upon  their  oaths  and  affirmations 
respectively  as  aforesaid,  do  further  present,  that  the  said  John 
Earle  on  the  said  fourteenth  day  of  October,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  thirty-five  as  aforesaid, 
and  on  divers  other  days  and  times  between  the  said  fourteenth 
day  of  October  in  the  year  last  aforesaid,  and  the  sixteenth  day 


1836.]  OF  PENNSYLVANIA.  526 

(Commonwealth  v.  Earle.) 

of  October,  in  the  year  last  aforesaid,  at  Lycoming  County  afore- 
said, with  force  and  arms,  did  knowingly,  wilfully,  feloniously 
and  of  his  malice  aforethought,  place,  mix,  and  mingle  certain 
deadly  poison,  to  wit,  white  arsenic,  in  certain  tea  which  had 
been  at  divers  days  and  times  during  *the  time  aforesaid,  r*co7-i 
prepared  for  the  use  of  the  said  Catherine  Earle,  to  be 
drunk  by  her  the  said  Catherine  Earle ;  he,  the  said  John  Earle, 
then  and  there  well  knowing  that  the  said  tea  with  which  the  said 
poison  was  mixed  as  aforesaid,  was  then  and  there  prepared  for 
the  use  of  the  said  Catherine  Earle,  with  intent  to  be  then  and 
there  administered  to  her  for  her  drinking  the  same.  And  the 
said  tea  with  which  the  said  poison  was  so  mixed  as  aforesaid, 
afterwards,  to  wit,  on  the  said  fourteenth  day  of  October,  in  the 
year  last  aforesaid,  and  on  the  said  other  days  and  times,  at  Ly- 
coming County  aforesaid,  was  delivered  to  the  said  Catherine  Earle 
to  be  then  and  there  drunk  by  her ;  and  the  said  Catherine  Earle, 
not  knowing  the  said  poison  to  have  been  mixed  with  the  said  tea, 
did  afterwards,  to  wit,  on  the  said  fourteenth  day  of  October,  in 
the  year  last  aforesaid,  and  on  the  said  divers  other  days  and 
times,  there  did  drink  arid  swallow  down  into  her  body  several 
quantities  of  the  said  poison  so  mixed  as  aforesaid  with  the  said 
tea ;  and  the  said  Catherine  Earle  of  the  poison  aforesaid,  and 
by  the  operation  thereof,  on  the  said  fourteenth  day  of  October 
in  the  year  last  aforesaid,  at  Lycoming  County  aforesaid,  became 
sick  and  greatly  distempered  in  her  body  ;  of  which  said  sickness 
and  distemper  occasioned  by  the  drinking,  taking,  and  swallow- 
ing down  into  the  body  of  the  said  Catherine  Earle  of  the  poison 
aforesaid,  so  mixed  and  mingled  in  the  said  tea  as  aforesaid,  she 
the  said  Catherine  Earle,  from  the  said  several  days  and  times  on 
which  she  had  so  drunk  and  swallowed  down  the  same  as  afore- 
said, until  the  said  sixteenth  day  of  October  in  the  year  last 
aforesaid,  at  Lycoming  County  aforesaid,  did  languish,  and  lan- 
guishing did  live  :  on  which  'said  sixteenth  day  of  October,  in  the 
year  last  aforesaid,  at  Lycoming  county  aforesaid,  she,  the  said' 
Catherine  Earle  of  the  poison  aforesaid,  so  taken,  drunk,  ana 
swallowed  down  as  aforesaid,  and  of  the  sickness  and  distemper 
thereby  occasioned,  did  die.  And  so  the  inquest  aforesaid,  upon 
their  oaths  and  affirmations  respectively  as  aforesaid,  do  say,  that 
the  said  John  Earle,  her,  the  said  Catherine  Earle,  in  the  manner 
and  by  the  means  last  aforesaid,  then  and  there  feloniously,  wil- 
fully, and  of  his  malice  aforethought,  did  kill  and  murder,  con- 
trary to  the  form  of  the  act  of  General  Assembly  of  this  Com- 
monwealth in  such  case  made  and  provided,  and  against  the  peace 
and  dignity  of  the  Commonwealth  of  Pennsylvania." 

The  trial  of  the  prisoner  commenced  on  the  2d  of  February, 
1836  ;  and  the  jury  returned  a  verdict  of  "  Guilty  in  manner  and 
form  as  stated  in  the  Indictment." 


527  SUPREME  COURT  [Appendix. 

(Commonwealth  t>.  Earle.) 

The  counsel  for  the  prisoner  moved  in  arrest  of  judgment,  and 
assigned  the  following  reasons : 

"  1.  That  it  is  not  alleged  in  either  count  in  the  indictment, 
that  the  defendant  knew  the  white  arsenic  to  be  a  deadly  poison, 
as  by  law  the  Commonwealth  were  bound  to  allege. 

r*^O81  *^'  ^uat  ^  *s  110^  a^e&ed  m  tue  indictment  that  the 
-•  chocolate  in  which  it  is  averred  that  the  white  arsenic 
was  mixed  and  mingled,  was  given  to  the  said  Catherine  Earle  to 
drink,  either  by  the  said  John  Earle,  or  any  other  person. 

3.  That  the  second  count  does  not  allege  that  the  defendant  in- 
tended to  commit  the  crime,  of  his  malice  aforethought,  as  is 
therein  alleged  he  did  commit  it." 

A  motion  for  a  new  trial  was  also  made  ;  but  after  Argument 
the  Court  overruled  botli  motions,  and  passed  sentence  of  death 
on  the  prisoner. 

An  application  was  then  made  to  the  chief  justice,  for  a  special 
allocatur  to  a  writ  of  error ;  and  the  following  reasons  were  as- 
signed in  writing,  by  Mr.  Parsons,  counsel  for  the  prisoner. 

"  1st.  That  the  Court  erred  in  not  arresting  the  judgment  on 
the  first  reason  assigned  upon  the  record. 

2d.  That  the  Court  erred  in  not  arresting  the  judgment  on  the 
second  reason  assigned  upon  the  record. 

3d.  That  the  jury  did  not  ascertain  in  their  verdict  the  degree 
of  murder  of  which  the  prisoner  was  guilty  :  whether  of  murder 
in  the  first  or  second  degree  ;  as  they  were  bound  to  do  accord- 
ing to  the  provisions  of  the  2d  section  of  the  act  of  'the  22d  of 
April,  1794. 

4th.  That  the  Court  erred  in  pronouncing  sentence  of  death 
upon  the  prisoner,  as  the  verdict  of  the  jury  is  now  rendered." 

"  The  first  reason  assigned  in  arrest  of  judgment  is,  '  That  it 
is  not  alleged  in  the  indictment,  that  the  defendant  knew  the 
white  arsenic  to  be  a  deadly  poison,  as  by  law  the  commonwealth 
are  bound  to  allege.'  In  indictments,  precedents  may  be  said 
to  be  law  ;  and  on  a  careful  examination  of  the  books  of  forms  in 
criminal  cases,  but  one  precedent  is  found  where  it  is  not  averred 
that  the  defendant  knew  that  the  substance  was  a  deadly  poison. 
In  Archbold  Criminal  Pleadings,  page  233,  the  form  is  so.  In 
3d  Chitty  Crim.  Law,  page  530,  the  form  is  thus  drawn.  In  the 
next  page  the  form  is  so — in  the  following  pages  the  form  is  in 
the  same  manner  ;  and  it  appears  to  be  a  very  necessary  aver- 
ment— for  one  might  innocently  administer  poison  as  a  medicine, 
ignorant  that  it  would  kill :  or  it  might  be  given  to  a  sick  person 
through  mistake.  And  the  knowledge  and  intention  with  which 
the  poison  is  given,  seem  to  constitute  the  very  essence  of  the 
offence  in  such  a  case.  In  Pennsylvania,  where  there  are  two 
degrees  of  murder,  it  seems  indispensably  necessary.  The  only 


1836.]  OF  PENNSYLVANIA.  528 

(Commonwealth  «.  Earle. ) 

precedent  believed  to  be  at  variance  with  the  above  view,  will  be 
found  in  3d  Chitty,  528 ;  and  it  is  believed,  that  in  this  case, 
which  was  the  indictment  against  Mary  Blandy,  for  the  murder 
of  her  father,  the  indictment  was  drawn  to  meet  the  facts  of  the 
case.  And  by  a  reference  to  the  facts  in  her  *case,  it  r*coq-i 
will  be  seen  that  her  confession  was  the  principal  evi-  L 
dence  relied  upon.  It  appeared  that  she  had  formed  an  attach- 
ment, in  whidh  she  was  opposed  strongly  by  her  father,  and  that 
the  person  to  whom  she  was  attached,  conveyed  to  her  in  a  letter 
some  white  powders,  which  he  informed  her  if  given  to  her  father, 
would  cause  him  to  change  his  views  upon  the  subject  of  her  mar- 
riage. She  gave  the  powders  to  him,  and  in  her  confession  denied 
unequivocally,  that  she  knew  they  contained  a  poisonous  substance. 
Now,  if  it  had  been  averred  that  she  knew  that  it  was  a  deadly 
poison,  the  prosecution  would  be  bound  to  satisfy  the  jury  of  the 
fact,  and  probably  they  might  not  have  been  able  to  do  it.  In 
England,  such  an  indictment  might  be  good,  but  in  Pennsylvania, 
it  is  submitted,  that  the  law  is  otherwise  ;  for  in  another  part  of 
my  argument,  an  effort  will  be  made  to  show,  that  one  may  be 
convicted  of  murder  in  the  second  degree,  where  the  killing  is  by 
poisoning. 

The  second  reason  assigned  in  arrest  of  judgment,  and  now  al- 
leged for  error,  is  that  "  it  is  not  stated  in  the  indictment,  that 
the  chocolate,  in  which  it  is  averred  that  the  Avhite  arsenic  was 
mixed  and  mingled,  was  given  to  the  said  Catharine  Earle  to 
drink,  either  by  the  said  John  Earle,  or  any  other  person." 

This  is  believed  to  be  necessary  ;  for  in  all  cases  where  a  mur- 
der is  committed  by  a  blow,  it  should  be  explicitly  stated  that 
the  same  was  given  by  the  prisoner.  See  2d  Hawkins'  P.  C.  If 
the  poison  was  mixed  and  mingled  by  the  prisoner,  and  it  was 
taken  by  the  deceased  through  mistake,  or  without  his  knowledge 
or  procuring,  he  could  not  be  convicted  of  murder  in  the  first 
degree. 

But  what  is  conceived  to  be  strong  ground  why  a  writ  of  error 
should  be  allowed,  and  why  the  judgment  should  be  reversed,  is, 
that  the  jury  have  not  found  the  degree  of  murder  of  which  the 
defendant  was  guilty.  This  I  believed  to  be  indispensably  neces- 
sary under  the  act  of  the  22d  of  April,  1794.  That  act  places 
all  murder,  "  perpetrated  by  means  of  poison,  or  by  lying  in  wait, 
or  by  any  other  kind  of  wilful,  deliberate,  and  premeditated  kill- 
ing, or  which  shall  be  committed  in  the  perpetration,  or  attempt 
to  perpetrate  any  arson,  rape,  or  burglary,"  upon  the  same  foot- 
ing. And  the  act  expressly  provides,  that  the  jury  before  whom, 
any  person  indicted  for  murder  shall  be  tried,  shall,  if  they  find 
such  person  guilty  thereof,  ascertain  in  their  verdict  whether  it 
be  murder  in  the  first  or  second  degree.  Here  is  a  positive  and 


SUPREME  COURT  [Appendix. 

(Commonwealth  v.  EarleO 

absolute  direction  to  the  jury,  as  to  the  form  and  manner  of  their 
finding,  and  one  which  cannot  be  disregarded  without  violating 
the  act  of  assembly ;  the  law  is  imperative,  and  it  is  the  duty  of 
the  court,  to  see  that  a  jury  find  their  verdict  in  accordance  with 
the  law.  And  what  adds  great  force  to  the  view  taken  of  this 
requisition,  is  the  clause  which  follows,  and  which  declares,  that 
if  such  person  shall  be  convicted  by  confession,  the  court  shall 
proceed  by  examination  of  witnesses,  to  determine  the  degree 
of  the  crime,  and  to  give  sentence  accordingly.  No  matter 
r*cqA-i  *in  what  form  the  indictment  is  drawn,  nor  how  the  kill- 
J  ing  is  alleged  to  be  done.  No  distinction  is  made  by  the 
act,  in  the  finding  of  the  jury,  let  the  charge  be  made  as  it  may 
in  the  indictment.  And  it  is  submitted,  that  the  legislature  could 
hardly  have  found  language  to  have  pointed  out  the  duty  of  the 
jury  in  more  emphatic  terms. 

But  it  is  alleged,  that  there  is  a  dictum  in  the  case  of  the  Com- 
motncealth  \.  White,  (6th  Binney,  179,)  that  militates  against 
this  construction.  It  is,  however,  a  mere  dictum,  and  not  the 
point  decided  in  the  cause ;  and  it  is  inconsistent  with  a  principle 
advanced  by  the  learned  judge  in  the  preceding  sentence.  The 
chief  justice,  who  delivered  the  opinion  of  the  court,  there  re- 
marks, "if  the  indictment  were  so  drawn  as  plainly  to  show  that 
the  murder  was  of  the  first  or  second  decree, — all  that  the  jury 
need  do,  would  be  to  find  the  prisoner  guilty  in  manner  and  form 
as  he  stands  indicted."  Without  stopping  to  inquire,  whether  an 
indictment  might  be  so  drawn,  as  to  supersede  the  necessity  of 
the  jury  finding  the  degree,  it  will  be  sufficient  to  show,  that  the 
indictment  against  Earle  is  not  of  that  character.  For  there  can 
be  no  doubt,  but  that  one  guilty  of  killing  another  by  poisdn, 
may  be  guilty  of  murder  in  the  second  degree;  and  a  jury  under 
the  laws  of  this  state,  would  have  a  right  so  to  find.  It  is  the  de- 
liberation, or  premeditation  with  which  the  act  is  done,  that  con- 
stitutes the  crime  of  murder  in  the  first  degree. 

Suppose,  in  the  case  of  Mary  Blandy,  the  jury  had  been  fully 
satisfied  that  she  was  ignorant  that  the  powders  contained  a  poi- 
sonous substance  but  supposed  them  to  be  really  what  she  asserted 
they  were  represented  to  her  to  be,  "  Love  powders"  and  that 
their  effect  would  be  to  reconcile  the  father  to  her  choice  :  might 
not  a  jury  with  propriety  find  such  defendant  guilty  of  murder  in 
the  second  degree? 

Other  similar  cases  might  be  put,  yet  in  all,  the  indictment 
would  be  for  murder  by  means  of  j>oi*on,  as  in  the  case  under 
consideration. 

Hence,  it  is  submitted,  that  the  indictment  in  the  case  of  Earle 
is  not  so  drawn,  as  to  dispense  with  the  necessity  of  the  degree  of 
murder  being  fixed  by  the  jury,  before  sentence  of  death  could 


1836.J  OF  PENNSYLVANIA.  530 

(Commonwealth  t>.  Earle.) 

be  given.  There  is  no  doubt,  but  that  a  penal  statute  like,  this, 
ought  to  be  construed  strictly  in  favor  of  life  ;  and  there  is  as 
little  doubt  but  that  a  jury,  in  a  case  of  killing  by  poison,  should 
designate  the  degree  of  the  murder  by  their  verdict,  as  in  any  other 
case ;  for  supposing  the  indictment  had  alleged  that  the  killing 
was  premeditated,  would  not  the  jury  be  bound  to  find  the  degree  ? 

In  the  case  of  Pennsylvania  v.  M' Falls,  (Addison's  Rep.  255,) 
tried  in  1794,  and  also  in  the  case  of  Pennsylvania  v.  Lewis, 
(Addis.  Rep.  279,)  tried  in  1796,  it  will  be  found,  that  the  jury 
ascertained  the  degree  of  murder  by  their  verdict.  And  it  is 
believed,  that  it  will  be  found  on  examination  of  the  criminal 
records,  from  the  passage  of  the  act  of  1794  to  this  time,  that 
the  jury  had  always  found  *the  degree  of  murder  where  r*cq-i  1 
judgment  has  been  rendered  on  the  verdict." 

The  case  was  considered  by  the  Court,  then  sitting  in  Bank  in 
Philadelphia ;  and  the  following  note  of  their  opinion,  was  fur- 
nished \>y  the  Chief  Justice  to  the  Reporter. 

THE  COURT  felt  itself  bound  to  refuse  an  allocatur :  1st, 
Because  it  is  not  entirely  clear,"  though  the  weight  of  authority 
from  precedent  is  the  other  way,  that  the  indictment  is  insuffi- 
cient for  want  of  an  averment,  that  the  prisoner  knew  the  sub- 
stance employed  to  be  a  deadly  poison.  In  Mary  Blandy's  case, 
(1  Hargr.  St.  Tr.  1,)  the  prisoner  was  executed,  though  the  in- 
dictment contained  no  such  averment.  Yet  it  is  undoubtedly 
the  safer  course  to  insert  it,  ex  majori  cautela :  2d,  Because,  such 
a  defect  could  not  by  any  possibility  affect  the  question  of  inno- 
^ence  or  guilt  before  the  jury  ;  and  it  is  not  the  duty  of  the 
Court,  for  such  a  cause,  to  grant  a  writ  of  error ;  which,  being, 
in  criminal  cases  of  grace  and  not  of  right,  was  refused  on  the 
same  suggestion,  in  the  Commonwealth  v.  Immel,  (6  Binney,  403;) 
The  Commonwealth  v.  Pennock,  (3  Serg.  &  R.  199,)  and  The 
Commonwealth  v.  Cox,  at  the  present  term.  3d,  Because  the 
want  of  an  allegation,  that  the  prisoner  gave  the  poison  to  the 
.  deceased  to  drink,  is  clearly  immaterial.  If  delivered  by  any 
one  else,  or  taken  by  the  deceased  without  delivery,  the  felonious 
purpose  would  be  equally  accomplished,  and  the  guilt  the  same. 
4th,  And  because,  "  all  murder  perpetrated  by  means  of  poison," 
being  equally  of  the  first  degree,  there  is  neither  necessity  nor 
room  for  discrimination  by  the  verdict,  where  the  degree  of  the 
offence  charged,  is  fixed  in  the  indictment.  It  would  be  of  deci- 
sive weight,  were  an  authority  wanting,  that  this  principle, 
though  not  decided,  was  asserted  in  White  v.  The  Commonwealth, 
(6  Binney,  183.)  The  provision  for  ascertainment  of  the  degree 
by  verdict,  was  intended  for  cases  in  which  the  jury  might  be  at 
liberty  to  find  the  prisoner  guilty  in  the  second  degree  ;  but,  as 


531  SUPREME  COURT  [Appendh: 

(M'Leod  v.  Latimer.) 

in  cases  of  murder  by  poisoning,  the  prisoner  is  guilty,  if  at  all, 
in  the  first  degree,  and  as  a  verdict  of  guilty  in  another  degree 
would  not  be  received,  the  law  will  not  require,  though  it  might 
endure,  the  performance  of  an  act  so  nugatory  as  an  attempt  at 
classification,  where  there  is  no  difference,  or  the  marking  by  ver- 
dict, of  a  measure  of  guilt  pre-established  by  the  law  itself. 

Allocatur  refused. 
Cited  by  the  Court,  12  Harris,  389. 


[*532]  [* PHILADELPHIA,  MARCH  27,  1826.] 

M'LEOD  against  LATIMER  and  Another. 

IN  ERROR. 

A.  being  indebted  to  B.  indorsed  certain  notes  for  his  accommodation,  which 
were  discounted  by  the  bank  of  P.  Shortly  afterwards  A.  made  an  as- 
signment for  the  benefit  of  creditors,  stipulating  for  a  release,  which  was 
executed  by  B.  but  not  by  the  bank.  Then  B.  also  made  an  assignment, 
stipulating  for  a  release  which  was  executed  by  the  bank.  The  assignee 
of  A.  made  a  dividend  of  50  percent,  which  was  paid  to  the  bank  among 
others,  as  a  creditor  upon  the  notes.  The  assignees  of  B.  made  a  divi- 
dend of  75  per  cent,  and  paid  the  bank  50  per  cent,  on  the  notes ; 
and  at  the  request  of  his  creditors,  his  assignees  re-assigned  the  remain- 
ing property  to  him.  In  an  action  by  B.  against  the  assignees  of  A.,  it 
was  held,  that  he  was  entitled  to  recover  50  per  cent,  of  the  debt  due 
him  by  A.,  deducting  the  difference  between  the  75  per  cent,,  the  divi-  • 
dend  payable  upon  the  notes  by  the  assignees  of  B.,  and  the  50  per  cent. 
actually  paid  by  them  to  the  bank. 

THIS  was  a  writ  of  error  to  the  District  Court  for  the  City 
and  County  of  Philadelphia,  to  remove  the  record  of  an  action 
on  the  case  for  money  had  and  received,  brought  by  John  M'Leod 
against  George  Latimer  and  Joseph  Clark. 

The  defendants  were  assignees  of  Jehu  Hollingsworth  under 
an  assignment  made  on  the  28th  of  June,  1817,  for  the  benefit 
of  creditors ;  and  the  action  was  instituted  to  recover  the  sum  of 
$1266  14,  being  a  dividend  of  50  per  cent,  on  the  estate  of  Hol- 
lingsworth,  alleged  to  be  due  to  the  plaintiff.  A  case  was  stated 
by  the  parties  in  nature  of  a  special  verdict :  the  material  facts 
of  which  are  set  forth  in  the  opinion  of  the  Court ;  which  was 
delivered  by 

TILGHMAX,  C.  J. — On  the  17th  May,  1817,  Hollingsworth 
was  indebted  to  the  plaintiff  on  a  running  account ;  the  amount 


OF  PENNSYLVANIA.  532 

(M'Leod  v,  Latimer.) 

of  which  was  in  dispute,  but  afterwards  was  settled  by  arbitra- 
tors, who  awarded  $2502  in  favor  of  the  plaintiff.  The  plaintiff 
drew  three  promissory  notes  of  $900  each,  payable  to  Hollings- 
worth,  which  were  endorsed  by  him  for  the  accommodation  of  the 
plaintiff,  who  had  them  discounted  in  the  Bank  of  Pennsylvania, 
and  received  the  full  amount  for  his  own  use.  The  notes  were 
dated  17th  May,  17th  June  and  21st  June,  1817,  and  all  payable 
60  days  after  date.  On  the  28th  June,  1817,  Hollingsworth 
made  an  assignment  of  all  his  estate  to  the  defendant,  for  the 
benefit  of  such  of  his  creditors  living  within  the  United  States,  as 
should  execute  a  release  to  him  of  all  demands,  within  four  months 
from  the  date  of  the  assignment,  *and  all  such  living  out  r*coo-i 
of  the  United  States  as  should  execute  a  release  within 
six  months  from  the  said  date.  The  plaintiff  executed  a  release 
within  four  months,  as  did  also  many  others  of  Hollingsworth's 
creditors.  About  the  time  of  the  execution  of  the  plaintiff's 
release,  (the  19th  July,  1817,)  the  first  of  the  said  promissory 
notes  became  due,  and  was  protested  for  non-payment ;  and  the 
other  two  were  also  protested  at  maturity  for  the  same  cause. 
The  Bank  of  Pennsylvania,  the  holders  and  owners  of  the  said 
notes,  did  not  execute  a  release  within  four  months,  according  to 
the  condition  of  Hollingsworth's  assignment.  On  the '19th  No- 
vember 1817,  the  plaintiff  made  an  assignment  of  all  his  estate 
to  George  Staribridge,  Thomas  Brown  and  John  Turner,  for  the 
benefit  of  such  of  his  creditors  as  should  execute  a  release  of  all 
demands  against  him  within  60  days  from  the  date  of  the  assign- 
ment. 

On  the  16th  January  1818,  the  day  on  which  the  arbitrators 
decided,  that  the  debt  due  from  Hollingsworth  to  the  plaintiff 
amounted  to  $2502,  the  defendants  wrote  a  letter  to  the  Presi- 
dent and  Directors  of  the  Bank  of  Pennsylvania ;  in  which  they 
told  them,  "  that  the  signing  by  them  of  John  M'Leod's  release 
would  not  in  any  manner  prejudice  or  weaken  the  claim  of  the 
Bank  against  the  estate  of  Jehu  Hollingsworth,  Jr.,  as  indorser  of 
certain  notes  of  John  M'Leod,  amounting  to  $2700,  protested  and 
unpaid  in  said  Bank." 

Although  the  fact  is  not  stated,  yet  the  probability  is,  that  in 
consequence  of  this  letter  the  Bank  of  Pennsylvania  executed  a 
release  to  the  plaintiff  within  the  60  days,  prescribed  by  his  as- 
signment. On  the  3d  July  1818,  the  defendants  declared  a  divi- 
dend of  50  per  cent,  on  the  estate  of  Hollingsworth  ;  and  on  the 
4th  of  March  1819,  they  paid  to  the  Bank  of  Pennsylvania 
$1350  99,  being  a  dividend  of  50  per  cent,  on  the  three  notes, 
including  the  costs  of  protest.  Early  in  January  1820,  the  as- 
signees of  M'Leod  declared  a  dividend  of  75  per  cent,  on  his 
estate ;  and  on  the  24th  of  that  month,  they  paid  the  Bank  of 


633  SUPREME  COURT  [Appendix. 

(M'Leod  v.  Latimer.) 

Pennsylvania  75  per  cent,  on  their  claim  against  M'Leod  on  two 
notes,  indorsed  by  him  and  drawn  by  John  Bradley,  but  only 
50  per  cent,  (amounting  to  $1350,)  on  the  three  notes,  drawn  by 
M'Leod  and  indorsed  by  Hollingsworth  as  before  mentioned. 

By  a  writing  bearing  date  the  28th  January,  1820,  in  which  it 
was  recited,  that  the  plaintiff  had  paid  75  per  cent,  on  the  amount 
of  his  debts,  his  creditors  authorized  his  assignees  to  re-assign  to 
him  "  all  the  property  then  remaining  in  their  hands,  unappro- 
priated, whether  real  or  personal,  free  and  discharged  of  any 
claim  of  the  said  creditors."  This  writing  was  signed  by  all  the 
plaintiffs  creditors,  the  Bank  of  Pennsylvania  included,  at  differ- 
ent days  between  its  date  and  the  8th  of  February  ensuing ;  on 
which  last  day  the  plaintiffs  assignees,  in  compliance  with  the 
said  writing,  rcconveyed  to  him  all  his  property  of  any  kind,  then 
remaining  unappropriated  in  their  hands.  It  is  admitted,  that  by 
f*fi'Ul  v'rtue  °f  tnis  *  reconveyance,  the  plaintiff  became  en- 
titled to  a  good  debt  of  $600,  besides  some  smaller  mat- 
ters ;  and  it  was  contended  by  his  counsel,  that  he  was  also  en- 
titled to  recover  of  the  defendants  50  per  cent,  of  the  $2502,  due 
him  on  his  account  against  Hollingsworth,  with  interest  from  the 
time  that  the  dividend  on  I lollings worth's  estate  was  declared  by 
the  defendants. 

A  majority  of  the  District  Court  were  of  opinion,  upon  the  case 
thus  stated,  that  the  plaintiff  was  not  entitled  to  recover  the  whole 
or  any  part  of  his  claim. 

It  seems  to  have  been  agreed  by  the  counsel  on  both  sides,  that 
the  payment  made  by  the  defendants  to  the  Bank  of  Pennsyl- 
vania, was  contrary  to  the  trust  declared  in  Hollingsworth's  deed 
of  assignment,  because  the  Bank  had  not  executed  a  release 
within  4  months.  Supposing  then,  that  by  this  payment  the  de- 
fendants were  placed  in  the  situation  of  the  bank,  of  what  could 
they  avail  themselves?  They  could  support  no  claim  against 
the  estate  of  the  plaintiff;  because  it  was  understood  before  the 
payment  was  made,  that  the  Bank  was  to  execute  a  release  to  the 
plaintiff;  neither  could  they  support  any  claim  against  the  estate 
of  Hollingsworth  in  their  own  hands;  because  the  payment  to  the 
Bank  being  contrary  to  the  condition  of  the  assignment,  no  agree- 
ment between  the  Bank  and  the  defendants  could  give  it  validity. 
But  if  it  had  been  stated  as  a  fact,  that  the  plaintiff  was  privy 
and  consenting  to  the  letter  of  the  16th  of  January,  1818, 
from  the  defendants  to  the  President  and  Directors -of  the 
Bank,  it  would  have  barred  his  recovery  in  this  action;  because 
although  the  payment  to  the  Bank  would  have  been  a  nullity,  as 
to  those  creditors  of  Ilollingsworth  who  had  released  within  4 
months,  and  had  given  no  consent  to  the  said  payment,  yet  the 
plaintiff  would  have  been  estopped  from  impeaching  it,  after  hav- 


OF  PENNSYLVANIA.  534 

(M'Leod  v.  Latimer.) 

ing  induced  the  bank  to  give  him  a  release,  founded  in  part  on  the 
consideration  of  that  payment,  by  which  the  plaintiff  had  been  a 
gainer.  At  present  we  must  not  presume  the  consent  of  the  plain- 
tiff, because  it  is  not  stated  as  a  fact  in  the  case  on  which  we  are 
to  decide.  It  was  strongly  urged  by  the  counsel  for  the  defend- 
ants, that  the  plaintiff's  release  to  Rollings  worth  enured  in  equity 
to  the  use  of  the  bank,  the  holder  of  the  three  notes  drawn  by 
the  plaintiff.  But  I  cannot  think  so.  The  plaintiff  released  his 
own  claim,  founded  not  on  these  notes,  but  on  his  account  against 
Hollingsworth.  There  would  have  been  more  reason  in  saying, 
that  Hollings worth,  the  indorser  of  these  notes,  if  he  had  them, 
might  stand  in  the  place  of  the  plaintiff.  But  he  did  not  pay 
them ;  on  the  contrary,  he  annexed  a  condition  to  his  assignment, 
which  precluded  any  payment  to  the  bank;  so  that  the  payment 
which  was  made,  was  unjustifiable. 

It  was  argued  also  by  the  counsel  for  the  defendants,  that  al- 
though no  previous  consent  was  given  by  the  plaintiff  or  his  assign- 
ees to  the  payment  made  by  the  defenants  to  the  bank,  yet 
*they  ratified  it  by  their  subsequent  conduct  in  taking  r*r:qc-i 
advantage  of  that  payment ;  in  consequence  of  which  a  ^  ' 
dividend  of  only  50  instead  of  75  per  cent,  was  paid  to  the  bank 
by  the  plaintiff's  assignees.  But  I  cannot  say  that  a  ratification 
is  necessarily  to  be  inferred  from  the  fact  of  a  payment  of  only 
50  per  cent.  What  were  the  plaintiff's  assignees  to  do  ?  When 
the  bank  claimed  a  dividend  of  no  more  than  50  per  cent,  how 
could  the  assignees  pay  more  ?  Or  how  does  it  appear,  that  those 
assignees  knew  that  the  payment  made  by  the  defendants  to  the 
bank,  Avas  illegal?  They  might  not  have  known  that  the  bank 
had  not  executed  a  release  to  Hollingsworth ;  and  if  they  were 
ignorant  of  that  fact,  there  is  no  ground  for  an  inference,  that 
the  payment  made  by  the  defendants  was  ratified.  Granting 
then,  that  there  has  been  no  legal  ratification  of  the  payment 
made  by  the  defendants  to  the  bank,  will  the  plaintiff  be  entitled 
to  recover  the  whole  dividend  of  50  per  cent,  on  the  debt  of 
$2502  due  to  him  from  the  estate  of  Hollingsworth  ?  That  I 
confess  would  be  going  further  than  equity  appears  to  me  to  war- 
rant, and  consequently  farther  than  should  be  permitted  in  this 
action,  in  Avhich  the  plaintiff  ought  only  to  recover  what  the  de- 
fendants cannot  in  good  conscience  retain.  It  is  against  good 
conscience  for  the  plaintiff,  first  to  appropriate  to  his  own  use 
part  of  the  money  paid  by  the  defendants,  and  afterwards  to 
insist  on  annulling  that  payment  altogether,  and  recovering  its 
whole  amount  from  the  defendants.  But  has  he  appropriated 
part  of  that  payment  to  his  own  use  ?  In  substance  he  certainly 
has.  But  for  that  payment  the  assignees  of  the  plaintiff  must 
have  paid  a  dividend  of  75  per  cent,  to  the  bank ;  instead  of 


535  SUPREME  COURT  [Appendix. 

(Freytagt>.  Powell.) 

which  only  50  was  paid ;  the  consequence  of  which  was,  that  the 
residue  of  the  plaintiff's  estate,  remaining  in  the  hands  of  his 
assignees,  and  reconveyed  to  him  by  order  of  his  creditors,  was 
increased  to  the  amount  of  the  difference  between  50  and  75  per 
cent,  on  the  dividend  paid  to  the  bank. 

The  utmost  that  the  plaintiff  can  in  equity  ask,  is  to  be  placed 
in  the  situation,  in  which  he  would  have  stood  if  the  defendants 
had  paid  no  dividend  to  the  bank  on  the  estate  of  Hollingsworth. 
A  calculation  has  been  made  and  agreed  to  by  the  counsel  of  both 
parties,  of  the  sum  which  would  be  due  to  the  plaintiff  on  that 
principle.  This  sum  is  $591  14;  for  which,  together  with  interest 
thereon  from  the  commencement  of  this  action,  I  am  of  opinion 
that  judgment  should  be  entered  for  the  plaintiff. 

Judgment  for  the  plaintiff  accordingly. 

Cited  by  Counsel,  ante  409. 


[*536]  ['PHILADELPHIA,  1833.] 

FREYTAG  against  POWELL  and  Another. 

1.  Land  in  and  adjoining  the  City  of  Philadelphia,  has  been  never  consid- 
ered to  be  within  the  jurisdiction  of  the  land-office,  so  as  to  be  the  sub- 
ject of  grant  by  warrant,  survey  and  patent. 

2.  Land  on  the  navigable  rivers  of  Pennsylvania,  between  high  and  low 
water  mark,  is  not  within  the  jurisdiction  of  the  land-office,  so  as  to  be 
the  subject  of  such  grant. 

Tins  was  an  action  of  ejectment  brought  in  the  District  Court, 
for  the  City  and  County  of  Philadelphia,  by  Michael  Freytag 
against  John  Hare  Powell  and  George  Ticknor,  to  recover  "  27 
acres  and  157  perches  of  marsh  or  cripple  land,"  situate  in  Block- 
ley  township,  in  the  County  of  Philadelphia. 

The  cause  came  on  for  trial  on  the  14th  of  Nov.  1833,  before 
Judge  Pettit  and  a  special  jury. 

The  plaintiff  gave  in  evidence,  the  following  title: 

1.  An  application  by  him  to  the  land-office,  dated  August  9th, 
1830,  "  for  30  acres  of  land,  situate  in  the  County  of  Philadel- 
phia, adjoining  lands  of  Richard  Harding,  on  the  north ;  land  , 
of  William  Bingham  and  the  late  Elizabeth  Powell  and  others, 
on  the  west;  the  Lancaster  turnpike  road  to  the  south,  and 
the  river  Schuylkill  to  the  east ;  which  tract  is  unimproved. 

2.  A  warrant  from  the   Secretary  of  the  land-office,  dated  Au- 
gust 16th,  1830,  reciting  the  above  application,  and  directing 


OF  PENNSYLVANIA.  536 

(Freytag  v.  Powell.) 

a  survey  of  "  the  quantity  of  acres  applied  for  at  the  place 
aforesaid,  if  not  already  surveyed  or  appropriated." 

3.  A  receipt  from  the  land-office,  dated  August  16th,  1830,  for 
the  purchase  money  of  the  said  30  acres,  at  the  rate  of  ten 
pounds  for  a  hundred  acres. 

4.  A  survey  by  David  Coombs,  deputy  surveyor,  dated  October 
12th,  1830,  made  in  pursuance  of  said  warrant  of  "  a  tract  of 
marsh  and  cripple  land,  situate  as  aforesaid:  the  whole  tract 
containing  30  acres  and  43  perches.     The  part  retained  com- 
taining  27  acres  and  157  perches,  being  unimproved.    The  resi- 
due is  two  acres  and  46  perches,  and  belongs  to  the  City  Cor- 
poration."    On  the  back  of  the  return  of  the  survey,  was  this 
memorandum  "Placed  in  the  rejected  files  in  consequence  of  a 
decision  of  the  Board  of  Property  of  the  5th  of  December, 
1831." 

*A  certified  copy  of  the  minutes  of  the  Board  of  Pro- 
perty,  was  then  given  in  evidence  by  the  plaintiff,  show- 
ing  that  a  caveat  had  been  entered  at  the  land-office,  by  John 
Hare  Powell  and  others,  that  a  hearing  of  the  parties  had  taken 
place,  and  that  the  Board  of  Property  had  decided  on  the  10th 
of  December,  1831,  that  a  patent  could  not  issue  to  Michael 
Freytag. 

The  application  to  the  land-office  was  under  the  act  of  Assem- 
bly, of  April  1st,  1784,  entitled  "  an  act  for  opening  the  land- 
office,  for  granting  and  disposing  of  the  unappropriated  lands 
within  this  state." 

The  action  was  instituted  within  the  term  of  six  months  after 
the  date  of  the  decision  of  the  Board  of  Property. 

The  plaintiff  here  rested  his  case. 

The  defendant  claimed  title  as  to  part  of  the  land  in  dispute, 
under  a  warrant  and  survey,  and  a  patent  from  the  proprietary, 
dated  the  16th  of  the  5th  month,  1684,  in  favor  of  Barnabas 
Wilcox,  and  sundry  mesne  conveyances.  The  warrant  survey 
and  patent  each  called  for  the  river  Schuylkill  as  a  boundary,  the 
first  line  being  as  follows  :  "  Beginning  at  a  white  oak  by  the  side 
of  the  river  Schuylkill;"  and  the  last  line  being  as  follows: 
"  from  a  pine  tree  standing  on  the  Schuylkill  river ,  thence  up  the 
several  courses  of  the  said  river,  to  the  first  mentioned  white  oak." 
As  to  the  remaining  part  of  the  tract,  the  defendant  claimed  under 
a  warrant  and  survey,  and  a  patemt  from  the  proprietary,  dated 
March  16th,  1692,  in  favor  of  Thomas  Duckett,  and  sundry 
mesne  conveyances.  The  warrant  recited  his  purchase  of  "a 
Schuylkill  front;"  the  patent,  however,  described  one  line  as 
running  from  "  a  corner  post  standing  on  the  edge  of  the  fast- 
land,  thence  along  the  several  courses  of  the  same  to  a  corner 
post  of  the  burying  ground;  and  another  line  as  running  from 
"a  corner  post  standing  by  the  cripple  side,  thence  along  the 


537  SUPREME  COURT  [Appendix. 

(Freytag  ti.  Powell.) 

several  courses  thereof,  to  the  place  of  beginning."  It  appeared 
that  at  the  date  of  the  patent,  a  small  space  was  occupied  as  a 
bury  ing-ground,  with  a  river  front  dividing  the  two  lines,  which, 
however,  in  the  course  of  time,  ceased  to  be  used  for  the  purpose. 
The  following  points  were  ruled  by  Judge  Pettit,  in  his  charge 
to  the  jury  : 

1.  That  the  Great  Town  of  William  Penn,  including  the  City 
of  Philadelphia  and  the  Liberty  land,  was  laid  out  and  surveyed 
for  a  special  purpose,  and  was  never  deemed  before  the  revolution 
to  be  within  the  ordinary  rules,  by  which  vacant  and  unimproved 
land  was  sold  by  the  proprietaries,  or  by  their  agents  acting  as 
land  officers.     And  that  the  acts  of  1781  and  1784,  are  to  be 
construed  as  having  a  reference  to  this  characteristic,  previously 

well  known  and  *understood,  and  as  excluding  from  the 
usual  jurisdiction  of  the  land  office,  the  land  in  and  near 
the  City  of  Philadelphia. 

2.  That  if  the  Duckett  Patent  of  March  16th,  1692-3,  under 
which  the  defendant  claimed  title,  called  for  the  river  Schuylkill 
as  a  boundary,  then  there  was  nothing  upon  which  the  plaintiff's 
warrant  could  operate. 

3.  That  land  on  the  navigable  rivers  of  Pennsylvania,  between 
high  and  low  water  mark,  detached  from  the  land  above  high  water 
mark,  is  not  within  the  jurisdiction  of  the  land  office,  and  is  not 
grantable  in  the  usual  way,  upon  the  usual  terms,  by  warrant  and 
survey ;  and  consequently,  that  if  the  marsh  or  cripple  land  sur- 
veyed under  the   plaintiff's  warrant,  was  below  ordinary  high 
water  mark,  the  plaintiff  could  have  no  title. 

Upon  the  first  proposition  the  jury  were  informed  that  the  law 
called  for  a  verdict  for  the  defendant. 

The  grounds  for  the  opinion  of  the  Court  on  all  the  points,  were 
given  at  large  in  the  charge. 

The  jury  were  requested  to  find  specially  as  to  the  fact,  whether 
the  Duckett  patent  did  or  did  not  call  for  the  Schuylkill  river  as 
a  boundary,  and  also,  specially,  as  to  the  fact,  whether  the  land 
surveyed  under  the  plaintiff's  warrant,  was  or  was  not  below  high 
water  mark. 

The  jury  gave  a  verdict  for  the  defendant,  and  found  specially, 
that  the  Duckett  patent  did  call  for  the  Schuylkill  river  as  a 
boundary,  and^  also,  that  the  land  surveyed  under  the  plaintiff's 
warrant,  was  b'elow  high  watermark. 

Verdict  for  the  defendant. 

Mr.  W.  White,  Mr.  Scott  and  Mr.  Rawle,  jr.,  for  the  plaintiff. 
Mr.  Cadwalader,  Mr.  J.  R.  Ingersoll  and  Mr.  Sergeant,  for 
the  defendants. 

Cited  by  Counsel,  ante  471 ;  2  Wharton,  536  ;  8  Watts  &  Sergeant,  441  ; 
8  Harris,  403. 


AN  INDEX 

TO  THE  PRINCIPAL  MATTERS. 


\ 


ACCOUNT  RENDER. 
SEE  ARBITRAMENT,  3,  4. 

ACT  OF  ASSEMBLY. 
SEE  PENAL  LAWS. 

ACTION. 

\.  "Where  a  defendant,  who  had  been 
sentenced  by  a  Court  of  Quartei 
Sessions,  upon  a  conviction  of  for- 
nication and  bastardy,  to  the  pay- 
ment of  a  certain  gross  sum  to 
the  mother  of  the  child,  and  also 
to  the  payment  to  her  of  a  weekly 
sum  for  a  certain  term,  applied 
for  and  obtained  a  discharge  of 
his  person  under  the  insolvent 
act,  it  was  held  that  the  mother 
might  maintain  an  action  of  debt 
upon  the  sentence  of  the  Quarter 
Sessions,  to  recover  the  amount 
ordered  to  be  paid  to  her.  Hell- 
ings  v.  Amey.  '  63 

2.  The  defendant  in  such  action 
having  pleaded  payment,  with 
leave  to  give  the  special  matters 
in  evidence,  it  was  held  that  the 
plaintiff  was  not  bound  to  prove 
the  averment  in  her  declaration, 
that  she  had  maintained  and  sup- 
ported the  child  during  the  term, 
for  which  the  defendant  was  lia- 
ble to  pay,  by  the  sentence  of  the 
court.  Ib. 

And  see  APPRENTICE.  ASSIGNMENT. 

ADMINISTRATION. 

One  died  seised  of  real  estate,  leav- 
ing three  daughters,  one  of  whom 
A.,  was  married  to  B.  By  three 
several  deeds  the  land  was  parti- 
tioned between  them;  but  the 
deed  to  B.  and  his  wife,  recited, 
VOL.  I.— 36 


that  on  the  death  of  her  father, 
her  share  descended  to  B.  and 
conveyed  one-third  to  him,  his 
heirs  and  assigns.  After  the  death 
of  B.  his  widow  borrowed  money, 
and  gave  a  sealed  note  for  pay- 
ment, upon  which  judgment  was 
entered ;  and  then  she  died.  C., 
the  son  of  A .  and  B.  became  ad- 
ministrator, both  of  his  father  and 
mother,  and  applied  to  the  Or- 
phans' Court  for  the  sale  of  the 
land,  as  the  property  of  A.  to  pay 
her  debts.  The  Court  refused  the 
application,  on  the  ground  that  it 
was  the  property  of  B.  The  land 
was  afterwards  sold  by  virtue  of 
proceedings  on  a  mortgage  given 
by  A.  and  B.  ;  the  suit  on  the 
mortgage  being  against  C.  as  ad- 
ministrator both  of  A.  and  B.  The 
balance  of  the  purchase  money, 
after  paying  the  mortgage,  was 
brought  into  court,  where  it  was 
directed  to  be  paid  to  C.  "  admin- 
istrator, &c.  as  aforesaid;"  and 
was  received  by  him.  In  a  scire 
facias,  on  the  judgment  above 
mentioned,  brought  against  C.,  as 
administrator  of  A.  it  was  held, 
that  C.  must  be  taken  to  have  re- 
ceived the  money  as  administra- 
tor of  A. ;  and,  consequently, 
that  he  was  liable  for  the  amount 
to  the  plaintiff  in  the  scire  facias. 
Wentz  v.  Wentz.  201 

And  see  LIMITATIONS,  3,  4. 

AGENT. 
See  EVIDENCE,  7. 

AMENDMENTS. 
1.  In  an  action  of  covenant,  amend- 
ments of  the  declaration  assign- 


540 


INDEX. 


ing  new  breaches  of  the  same  in- 
strument on  which  the  original 
counts  were  founded,  and  alleging 
performance  on  the  part  of  the 
plaintiff,  in  another  mode  than 
was  alleged  in  the  original  counts, 
are  admissible.  Coxe  v.  Tilgh- 
man.  282 

2.  In  actions  ex  contractu,  so  long 
as  the  plaintiff  adheres  to  the  ori- 
ginal instrument  or  contract    on 
which  the  declaration  was  found- 
ed, an  amendment  making  an  al- 
teration of  the  grounds  of  recov- 
ery on  that  instrument  or  contract, 
or  of  the  modes  in  which  the  de- 
fendant has  violated  it,  is  admissi- 
ble.   Per  SERGEANT,  J.  Ib. 

3.  In  actions  ex  delicto,  the  rule  is 
the  same :  The  foundation  of  the 
complaint  laid  in  the  declaration 
must  be  adhered  to  ;  although  the 
mode  of  stating  that  complaint, 
may  be  varied  by  an  amendment. 
Per  SERGEANT,  J.  Ib. 

4.  A    plaintiff  having    declared    in 
trover  for  a  bond  the  case  was  re- 
ferred, under  the*  act  of  1810,  to 
arbitrators,  who  made  an  award 
in    favor    of    the    plaintiff,   from 
which    the    defendant    appealed : 
Held,  that  the  Court  below  was 
right  in  refusing  the  plaintiff  leave 
to  withdraw  the  original  declara- 
tion, and  substitute  one  alleging 
the  conversion    to  have  been  of 
certain  instruments  of  writing  not 
under  $eal.     Tryon  v.  Miller.      11 

5.  It  sefm*  that  such  an  amendment 
being  the  substitution  of  a  differ- 
ent cause  of  action  from  that  orig- 
inally stated,  is  not  within  the  act 
of  1806,  and  therefore  it  is  discre- 
tionary with  the  Court  to  which 
it  is  offered  to  admit  or  reject  it ; 
and  their  decision  in  relation  to  it 
is  not  subject  to  revision  upon  a 
writ  of  error.  Ib. 

APPRENTICE. 

An  apprentice  cannot  maintain  an 
action  against  his  master  to  re- 
cover compensation  for  extra  work, 
done  by  him  for  the  latter,  during 
the  term  of  the  apprenticeship; 
although  the  work  was  done  upon 
the  express  promise  of  the  master 
to  pay  for  it.  Bailey  v.  King.  113 


ARBITRAMENT. 

1.  Where  it  appears,  by  the  record 
of  the  court  below,  that  a  case 
was    referred,   under    the  act   of 
1705,  to  three  persons,  and  that 
on  a  subsequent  day,  one  of  them 
having  declined  to  serve,  another 
person  was  appointed  in  his  place, 
it  will  be  presumed  in  the  absence 
of   contradiction    by  the    record, 
that  the  substitution  was    made 
with  the  consent  of  both  parties. 
Br<ncning  v.  M'Manua.  177 

2.  Exceptions  to  an  award,   under 
the  act  of  1705,  arising  from  al- 
leged want  of  notice  to  the  party 
making    the    exception,   and    the 
like,  must  be  made  in  the  court  in 
which    the    action  was   brought, 
and  will  not  be  considered  in  tlrs 
court.  Ib. 

3.  In  an  action  of  account-render  be- 
tween partners,  a  reference  was 
made  under  the  act  of  1705,    to 
three  persons,  who  were  "to  state 
an  account,  and  hear  and  deter- 
mine all  matters  in  variance  be- 
tween   the   parties    in    the    *«#." 
Held,  that  it  was  not  a  valid  ex- 
ception to  the  report  of  re  fences, 
that  it  included  matters  not  pro- 
perly cognizable  in  an  action  of 
account-render.       Odenwelder     v. 
Odenvelder.  108 

4.  It  is  not  a  valid  exception  to  a  re- 
port of  referees,  in  an  action  of 
account-render  between  partners, 
that  they  have  not  disposed  of  cer- 
tain of  the  partnership  effects,  or 
of  the  outstanding  debts  due  to 
the  firm,  but  left  them  for  future 
distribution.  Ib. 

5.  Real  estate  settled  to  the  separate 
use  of  S.,  a  married  woman,  was 
sold  by  the  sheriff  on  a  judgment 
against  her  and  her  husband  in 
an  action  of  tort,  and  purchased 
by  A.  who  after  receiving  his  deed, 
commenced  proceedings  under  the 
act  of  1802,  before  two  justices,  to 
obtain  possession.     B.,  the  trustee 
of  8.  claimed  title,  and  the  justices 
stayed  proceedings.     B.  neglected 
to  prosecute  his  chv'm  at  the  next 
Court  of  Common  Pleas;  and  pend- 
ing an  application  to  the  Court  to 
be  allowed  to  file  the  record  nunc 
pro  tune,  an  agreement  was  signed. 


INDEX. 


541 


headed  with  the  name  of  A.  as 
plaintiff,  and  the  husband  and  wife, 
defendants,  and  entitled  as  other 
proceedings  before  two  justices, 
and  signed  by  the  attorneys  for 
the  plaintiff  and  defendants,  and 
by  B.  the  trustee ;  by  which  it 
was  agreed  that  the  question, 
whether  the  plaintiff  as  sheriff's 
vendor,  was  entitled  to  possession, 
should  be  referred  to  three  gentle- 
men of  the  bar ;  and  if  it  should 
be  determined,  that  he  was  so  en- 
titled, B.  was  to  surrender  pos- 
session without  further  delay  or 
controversy,  &c.  r  The  referees 
awarded  that  A.  as  sheriff's  ven- 
dee was  "entitled  to  the  possession 
of  the  property  in  dispute."  In 
ejectment  by  B.  against  A.  (who 
had  obtained  possession,)  it  was 
held,  that  this  award  was  not  con- 
clusive of  the  title  to  the  premises, 
so  as  to  prevent  a  recovery  by  B. 
Pidlen  v.  Rianhard.  514 


ASSIGNMENT. 

1.  Where  an   assignment  has  been 
made  for  the  benefit  of  creditors, 
an  action  cannot  be  maintained  by 
one  of  the  creditors  against  the 
assignees,    until  the  accounts  of 
such  assignees  have  been  settled 
in  the  Common  Pleas,  and  a  de- 
cree made  by  that  Court  for  dis- 
tribution ;  and  the  rule  is  the  same, 
whether  the  action  is  for  money 
had   and  received,  or  upon  aver- 
ment of  misconduct  and  misman- 
agement on  the  part  of  the  defend- 
ants.         Vanarsdale  v.  Richards. 

408 

2.  A.   the    holder  of  a  promissory 
note,  a  short  time  before  the  fail- 
ure of  the  drawer,  and  in  antici- 
pation of  that  event,  sold  it  to  B. 
who  was  indebted  to  the  drawer. 
On  the  failure  of  the  drawer,  his 
assignees  brought  an  action  against 
B.,    who   set  off  the   promissory 
note  and  obtained  a  verdict  and 
judgment :  Held,   that  •  A.  had  a 
right  to  dispose  of  the  note  to  B. 
and    that   the    assignees   had   no 
cause  of  action  against  him.     Hep- 
pard  v.  Bet/lard.  223 

3.  A.  being  indebted  to  B.  endorsed 
certain  notes  for  his  accommoda- 


tion,  which  were  discounted  by 
the  bank  of  P.  Shortly  afterwards 

A.  made   an   assignment  for  the 
benefit    of   creditors,    stipulating 
for  a  release,  which  was  executed 
by  B.  but  not  by  the  bank.     Then 

B.  also  made  an  assignment,  stip- 
ulating  for  a  release   which   was 
executed  by  the  bank.     The  as- 
signee of  A.  made  a  dividend  of 
50  per  cent,  which  was  paid  to 
the  bank  among  others,  as  a  cred- 
itor upon  the  notes.     The  assign- 
ees of  B.  made  a  dividend  of  75 
per  cent,  and  paid  the  bank  50  per 
cent,  on  the  notes  ;  and  at  the  re- 
quest of  his  creditors,  his  assign- 
ees re-assigned  the  remaining  prop- 
erty to  him.    In  an  action  by  B. 
against  the  assignees  of  A.,  it  was 
held,  that  he  was  entitled  to  re- 
cover 50  per  cent,  of  the  debt  due 
him  by  A.,  deducting  the  differ- 
ence between  the  75  per  cent,  the 
dividend  payable  upon  the  notes 
by  the  assignees  of  B.  and  the  50 
per  cent,  actually  paid  by  them  to 
the  bank.     M'Leod  v.  Latimer. 

532 
And  see  EXECUTION,  1. 

ASSUMPSIT. 

1.  Indebitatus  assumpsit  will  lie  to 
recover  the  money  agreed  to  be 
paid  for  owelty  on  a  parol  parti- 
tion of  lands ;  though  there  must 
be  an  averment  of  circumstances 
to  take  the  contract  out  of  the  stat- 
ute of  frauds.  Walter  v.  Walter. 

292 
And  see  PLEADING,  1. 

ATTACHMENT,  (FOREIGN.) 

Where  one  bequeathed  the  interest 
of  a  certain  sum  to  his  wife  during 
her  life  ;  and  his  widow  afterwards 
married  again ;  it  was  held  that 
the  interest  so  accruing  was  not 
liable  to  a  foreign  attachment,  at 
the  suit  of  a  creditor  of  the  second 
husband.  Robinson  v.  Woelpper. 

179 

AWARD. 

See  ARBITRAMENT. 

BARON  AND  FEME. 

See  FEME  COVERT. 


542 


INDEX. 


CANAL. 
See  UNION  CANAL  Co. 

COMMON  RECOVERY. 
See  RECOVERY. 


CONVERSION. 

1.  A  testator  directed  his  executors 
to  sell  all  his  real  estate,  goods  and 
chattels,  and  to  pay  the  proceeds, 
together  with  all  the  moneys  com- 
ing to  their  hands  after  the  pay- 
ment of  his  just  debts,  funeral 
expenses  and  legacies,  to  two  per- 
sons whom  he  appointed  guar- 
dians for  his  son,  and  whom  he 
directed  to  invest  the  money  and 
to  apply  the  interest  thereof,  to 
the  maintenance  and  education  of 
his  son  during  his  minority,  and 
to  pay  the  principal  to  him  on  his 
arriving  at  the  age  of  twenty-one 
years.  But  in  case  he  should  die 
before  his  arrival  at  that  age,  he 
gave  the  same  to  the  children  of  a 
brother  and  sister  in  Scotland.  In 
the  same  clause  with  the  directions 
to  executors  to  sell,  he  declared 
his  will  to  be  that  his  houses  should 
be  rented  out  "until  the  same  shall 
be  sold  as  aforesaid."  The  houses 
were  not  in  fact  sold.  The  son  of 
the  testator  arrived  at  the  age  of 
twenty-one,  and  died  about  a  year 
thereafter,  having  made  a  will  in 
which  he  devised  one  of  the  houses 
to  A.,  "her  heirs  and  assigns," 
and  the  other  to  B.  without  words 
of  inheritance:  Held,  1.  That  the 
real  estate  of  the  testator  was  in 
equity  converted  into  personal,  by 
the  directions  of  his  will,  and  con- 
tinued so  during  the  minority  of 
his  son  :  2.  That  the  son  was  to  be 
considered  as  having  elected  to 
take  the  houses  as  real  estate,  and 
that  B.  took  only  a  life  estate  in 
the  house  devised  to  him.  3.  That 
the  election  to  take  as  real  estate 
operated  as  a  new  acquisition,  and 
not  to  cast  the  descent  upon  him 
as  from  the  part  of  his  father  ;  and 
consequently,  that  the  reversion 
in  fee  of  the  house  devised  to  B. 
vested  in  the  heirs  exparte  mnterna 
as  well  as  those  ex  parte  paterna. 
Burr  v.  Sim.  252 


CONVEYANCE. 

1.  A  deed  in  the  following  words: 
"Memorandum  of  an  agreement 
made,  &c.,  this  24th  day  of  Feb- 
ruary, 1816,  between  J.  L.  of,  &c., 
and  D.  L.  of,  &c.,  witnesseth,  that 
the  said  J.  L.  hath  let  unto  the 
said  D.  L.  his  legal  heirs  and  re- 
presentatives, a  certain  piece  of 
meadow  containing  one  acre,  &d., 
at  the  rate  of  $15  per  acre,  to  be 
paid  by  the  said  D.  L.  or  his  legal 
heirs,  annually,  to  the  said  J.  L. 
his  heirs  and,  assigns.  In  witness 
both  parties  have  hereunto  set 
their  hands  and  seals,  in  the  year 
first  above  written,"  &c. :  was  held 
to  pass  a  fee  simple  to  D.  L.,  sub- 
ject to  an  annual  ground  rent 
in  fee,  and  not  to  be  a  lease  for 
years  merely.  Krider  v.  Lafferty. 

303 


2.  One  bequeathed  a  certain  sum  of 
money  to  his  granddaughter  A., 
as  her  absolute  property,  and  de- 
clared that  it  was  not  for  the  bene- 
fit of  her  husband  or  father,  &c., 
and  he  appointed  his  son  B.  exe- 
cutor of  his  will.  In  1829,  B.,  by 
indenture,  conveyed  to  C*.  (the 
father  of  A.)  a  certain  house  and 
lot,  habenduin,  to  C'.,  his  heirs  and 
assigns,  in  trust,  nevertheless,  for 
the  sole  use,  benefit  and  behoof  of 
A.  and  her  heirs.  It  was  alleged 
that  this  conveyance  was  made  in 
satiofaction  of  the  legacy :  but  A. 
was  not  a  party  to  it.  In  1830, 
by  indenture  between  B.  of  the 
first  part,  and  A.  and  J.  S.  her 
husband  of  the  second  part,  and 
D.  of  the  third  part,  reciting  the 
previous  conveyance,  and  that  it 
was  made  without  the  privity  or 
consent  of  J.  8.  or  A.  his  wife,  B., 
in  consideration  of  the  said  legacy, 
conveyed  the  said  premises  to  D. 
in  trust  for  the  use  of  J.  8.  and  A. 
his  wife,  &c.  In  assumpsit  for 
the  use  and  occupation  of  the 
premises,  brought  by  C.  against  a 
tenant  thereof,  it  was  held,  that 
the  deed  of  1829,  with  its  recitals, 
was  admissible  in  evidence  against 
the  plaintiff,  and  that  the  deed  of 
1829  being  invalidated  and  an- 
nulled by  that  of  1830,  the  plain- 


INDEX. 


543 


tiff  was  not  entitled  to  recover. 
Reigart  v.  Elder.  18 

And  see  WILL,,  9. 

BAIL. 
See  PRACTICE,  2. 

CORPORATION. 

1.  An  act  of  assembly  incorporating 
certain  persons  by  name,  and  all 
others  thereafter  becoming  mem- 
bers, the  object  of  which  incorpo- 
ration was  declared  to  be  to  re- 
ceive from  time  to  time,  deposits 
of  money,  and  to  pay  the  deposi- 
tors such  interest,  as  might  from 
time  to  time  be  agreed  upon  by 
the  directors,  enacted  that  for  the 
security  of  the  depositors,  a  cer- 
tain capital  should  be  raised,  to 
be  divided  into  shares,  which 
should  be  transferable,  &c.  The 
act  then  proceeded  to  provide  for 
annual  meetings  of  the  members, 
and  for  the  election  of  directors 
from  among  the  members ;  gave 
to  the  directors  power  to  provide 
for  the  admission  of  members,  and 
made  it  their  duty  to  appoint  from 
among  the  members,  five  persons 
as  a  committee  of  examination, 
and  also  to  make  a  dividend  of 
profits,  and  to  pay  the  same  over 
to  the  stockholders,  or  their  legal 
representatives  :  Held, 

1.  That  stockholders  were  not, 
as  such,  members  of  the  corpora- 
tion ;    consequently  that    the  as- 
signee of  a  stockholder  did  not  by 
the  assignment  become  a  member. 

2.  That  persons  originally  mem- 
bers,  continued    to  be  such,    al- 
though they  never  possessed  stack, 
or  had  parted  with  it.     Philadel- 
phia  Savings  Institution  Case. 

461 
And  see  UNION  CANAL  Co. 

COSTS. 

1.  On  the  taxation  of  costs  against  a 
defendant  in  an  action  at  law,  the 
costs  of  a  bill  to  perpetuate  testi- 
mony   were    disallowed.     Ml  Wil- 
liams v.  Hopkins.  276 

2.  Members  of  the  bar  are  not  en- 
titled to  witness  fees  for  atten- 
dance in  a  Court  in  which  they 
actually  practice.  Ib. 


3.  To  entitle  a  party  to  the  costs  of 
his  witnesses  and  of  the  service  of 
subpo3nas  upon  them,  it  is  not  ne- 
cessary that  their  names  should 
have  been  inserted  in  the  subpoa- 
nas  by  the  prothonotary,  before 
delivering  them  to  the  party.      Ib. 

4.  It  is  not  necessary  that  witnesses 
should  attend  before  the  prothono- 
tary on  the  taxation  of  costs,  to 
prove  their  attendance  on  the  trial 
of  the  cause.     The  fact  may  be 
proved  aliunde.  Ib, 

5.  Witnessess  who  attended  before 
the  prothonotary  on  the  taxation 
of  costs,  to  prove  their  attendance 
at  the  trial,  held  not  to  be  entitled 
to  fees  for  such  attendance  before 
the  prothonotary.  Ib. 

And  see  SET-OFF. 

COUNTY  COMMISSIONERS. 

1.  Mandamus  to  the  Commissioners 
of  the  County  of  Philadelphia,  to 
draw  orders  011  the  County  Treas- 
urer refused,  where  it  appeared 
by  the  return  to  a  rule  to  show 
cause  that  there  was  no  money  in 
the  county  Treasury,  applicable 
to  the  purpose.  Commonwealth  v. 
Co.  Commissioners.  1 

COURTS,  SPECIAL. 
See  ERROR,  1. 

COVENANT. 

See  AMENDMENTS,  1. 

DEBTS  OF  A  DECEDENT. 

See  LIMITATION,   3,   4.     ORPHANS' 
COURT,  1. 

DESCENT. 
See  CONVERSION. 

DEVISE. 
See  WILL. 

EASEMENT. 

See  UNION  CANAL  COMPANY. 
WILL,  5. 

ELECTION. 
See  CONVERSION.    WILL,  7. 


544 


INDEX. 


EQUITY. 

See  MORTGAGE.    UNION  CANAL 
COMPANY. 

ERROR. 

1.  The    decision  of  the    President 
judge  of  the  Court  of  Common 
Pleas,  upon  an  exception  to  his 
jurisdiction,  under  the  act  relating 
to  Special  Courts,  cannot  be  re- 
viewed in  this  court  ;  it  being  a 
matter  entirely  within  his  discre- 
tion.    Philadelphia  Library  Co.  v. 
Ingham.  72 

2.  This  Court  will  not  consider  any 
paper  annexed  to  the  record,  as 
furnishing  the  opinion  of  the  court 
below,  under  the  act  of  1806,  un- 
less it  also  appear  by  the  record, 
that  the  paper  was  filed  at  the  re- 
quest of  one  of  the  parties  or  of 
his  counsel.    Lancaster  v.  Denor- 
mandie.  49 

8.  It  cannot  be  assigned  for  error, 
that  the  Court  below  declined  an- 
swering a  question  put  to  them 
by  a  juror,  on  a  point  of  law. 
Krider  v.  Lafferty.  303 

4.  If  a  paper  purporting  to  be  a  re- 
ceipt, is  rejected  by  the  Court, 
but  afterwards  admitted  on  proof 
of  its  authenticity  by  the  person 
signing  it,  the  rejection  in  the  first 
instance  cannot  be  assigned  for 
error,  on  the  ground  that  it  com- 
pelled the  party  offering  it,  to  call 
ax  a  witness  the  person  signing  it, 
who  was  the  witness  of  the  other 
party,  and  thus  give  the  other 
party  the  bent-fit  of  the  cross-ex- 
amination. Krider  v.  Lafferty. 

302 
And  see  PENAL  LAWS,  3,  6. 

ESTATE  IN  FEE  SIMPLE,  FOR 

LIFE,  &c. 
See  CONVEYANCE,  1.    WILL,  1,  2,  3. 

EVIDENCE. 

1.  A  plaintiff  in  trover  for  certain 
instrument*  of  writing  having 
while  the  cause  was  before  arbi- 
trators, filed  with  them  an  agree- 
ment to  release  any  judgment  in 
his  favor,  upon  certain  terms, 
which  agreement  was  attached  by 
the  arbitrators  to  their  report  ;  it 


was  held,  that  the  plaintiff  could 
not  upon  the  trial  of  the  case  al'tcr 
an  appeal,  read  the  agreement  to 
the  jury.  Try  on  v.  Miller.  11 

2.  In  trespass  against  a  purchaser 
at  sheriff's  sale,  where  the  ques- 
tion  was  whether    the  purchase 
included  a  certain  piece  of  ground 
in  possession  of  the  plaintiff ;  the 
defendant  gave  in  evidence  a  re- 
ceipt signed  by  the  former  owner 
of  the  land  sold  at  the  sheriff's 
sale,  by  which  he  Agreed  to  give 
up  possession  at  a  certain  time  : 
it  was  held  that  the  plaintiff  might 
examine  the  witness  who  gave  the 
receipt,  to  show  that  it  was  not  his 
intention  to  include  in  the  agree- 
ment,  the    lot    occupied    by  the 
plaintiff.   Krider  v.  Lafferty.     303 

3.  The  rule  that  parol  evidence  is 
not  admissible  to  alter  or  contra- 
dict written  instruments,  applies 
only  to  cases  between  the  parties 
to  the  instrument,  their  represen- 
tatives, and  those  claiming  under 
them  ;  but  not  to  strangers.     Per 
KENNEDY,  J.  Ib. 

4.  Where    the    declaration,    in     an 
action  on  the  case,  alleged  that 
the  defendant  wrongfully  and  un- 
justly sued  out  an  execution  upon 
a  judgment  which  he  had  entered 
against  the  plaintiff,  and  by  virtue 
thereof,  wrongfully  and  unjustly 
caused  the  land  of  the  plaintiff  to 
be  seized  and  sold,  &c. ;  knoitting 
the  judgment  to  be  paid  and  satis- 
fied ;  it  was  held  that  evidence  was 
not  admissible  to  prove  that  the 
debt,  for  which  the  judgment  had 
been  entered,  was  paid  before  the 
entry  thereof.  Lee  v.  Conard.  155 

5.  In  an  action  against  three  per- 
sons as  partners,   two*  of  whom 
only    have  been  summoned,    the 
partner  as  to  whom  a  return  of  n. 
e.  i.  has  been  made,  is  not  a  com- 
petent witness  for  the  other  de- 
fendants, to  disprove  the  allega- 
tion of  a  partnership  having  ex- 
isted ;  although  released  by  them. 
Carter  v.  Connell.  392 

6.  A  witness  called  to  authenticate 
a  paper,  cannot  be  asked  whether 
to  the  best  of  his  impression,  the 
paper  is  in  the  hand  writing  of  the 
party.  Ib. 


INDEX. 


545 


7.  In  trover  against  one  who  had 
purchased  goods   from   a  person 
alleging  himself  to  be  the  owner, 
declarations   by  an   agent  of  the 
plaintiff,  made  at  the  time  of  the 
purchase  by  the  defendant,   dis- 
claiming title  in  the  plaintiff,  were 
held  to  be  admissible  in  evidence 
on    the    part    of   the    defendant. 
Richards  v.  Murphy.  185 

8.  Copies  of  old  maps  and  plans  of 
the   City  of  Philadelphia,  in  the 
office  of  the  Surveyor  General,  and 
certified  by  nim,  held  to  be  admis- 
sible in  evidence,  on  a  question  of 
the  title  to  an  open  square  in  the 
city.     Com.  v.  Alburger.  469 

9.  The    "list  of  first  purchasers," 
with  the  advertisement  annexed, 
held  to  be  admissible  in  evidence 
on  the  same  question.  Ib. 

10.  Historical  books  which  have  been 
generally  received  as  authentic,  are 
admissible  as  furnishing  evidence 
of  remote  transactions.     Common- 
wealth v.  Alburger.  469 

And  see  ACTION,  2.  CONVEYANCE,  2. 
ERROR,  4.  PLEADING,  1,  3,  4. 
TRESPASS,  2.  WILL,  10. 

EXECUTION. 

1.  Where  an   assignment  of  goods 
was  made  for  the  benefit  of  credi- 
tors, and  the  assignee  advertised 
the  property  for  public  sale  at  a 
certain  time,  at  which  time  there 
was  no  rent  due,  and  before  that 
time  the  landlord  distrained,  and 
prevented  a  sale,  and  then  the  sher- 
iff seized  under  an  irregular  exe- 
cution, and  sold,  and  out  of  the 
proceeds  paid  the  rent  accruing  to 
the  landlord ;  it  was  held,  in  an 
action  of  trespass  brought  against 
him  by  the  assignee,  that  he  was 
not  entitled  to  any  deduction  for 
the  rent  so  paid  to  the  landlord. 
Bur  chard  v.  Rees.  377 

2.  Whether  a  levy  upon  goods  in  a 
shop  in  the  lower  part  of  a  house 
amounts  to  a  levy  upon  the  furni- 
ture in  the  upper  part  of  the  same 
house?  Ib. 

3.  A  fieri  facias  having  been  issued 
and  levied  on  personal   property, 
the  plaintiff  issued  another  writ  of 
fieri  facias  and  delivered  it  to  the 


sheriff,  but  caused  it  to  be  with- 
drawn before  any  proceedings 
were  had  under  it.  Held,  that  it 
was  not  an  abandonment  of  the 
preceding  levy.  Inghamv.  Snyder. 

116 

4.  It  seems,  that  the  intervention  of 
a  term,  between  the  teste  and  re- 
turn of  judicial  process,  is  not  an 
irregularity.  Ib. 

And  see  SHERIFF'S  SALE. 

EXECUTORS,  &c. 

See   CONVERSION.     LIMITATION,   8. 
TRUSTEE. 

FEME  COVERT. 

1.  A  parol  agreement  by  the  hus- 
band of  a  tenant  in  common,  to 
make  partition,  afterwards  ratified 
by  her  by  deed  duly  acknowledged, 
is  binding;  and  in  an   action  by 
one  of  the  parties  to  the  partition, 
the   original  contract  may  be  de- 
clared on,  and  is  not  necessary  to 
aver    the     ratification     specially. 
Walter  v.  Walter.  292 

2.  A  house  and  lot  of  ground  were 
conveyed,  by  deed  of  bargain  and 
sale,  to  a  trustee,  his  heirs  and 
assigns,  in  trust  to  permit  S .,  the 
wife  of  J.,  to  take  the  rents  and 
profits  for  her  separate  use  as  if 
she  were  a  feme  sole,  so  that  the 
same  should  not  be  subject  to  the 
debts  of  her  husband ;  and  after 
her  death,   to   such  uses  as  she 
should  appoint  by  will ;  and  in  de- 
fault of  such  appointment,  and  in 
case  she  should  not  dispose  of  the 
premises  at  private  sale,  which  she 
was    thereby    authorized    to  do 
whenever  she  could  dispose  of  the 
same  to  the  benefit  of  herself  and 
children,  then  to  and  for  the  use 
of  such  child  or  children  as  she 
should  leave,  &c.    An  action  on 
the  case  for  obstructing  a  right  of 
way,  was  brought  against  J.  and 
S.  his  wife,  and  judgment  was  ob- 
tained against  both,  under  which 
the  premises  were  levied  upon  by 
the  sheriff'  and  sold  :  Held,   that 
the  purchaser  acquired   no  title. 
Pullen  v.  Rianhard.  514 

And  see  ADMINISTRATION.  ARBI- 
TRAMENT, 5.  ATTACHMENT.  CON- 
VEYANCE, 2.  WILL,  8. 


540 


INDEX. 


FIERI  FACIAS. 
See  EXECUTION. 

FISHERY. 
See  TRESPASS,  1. 

FIXTURES. 

1.  Even  as  between    landlord    and 
tenant,   fixtures    erected    by   the 
latter,  and  which  he  is  entitled  to 
remove,  must  be  removed  during 
the  term  :  after  the  expiration  of 
the  term,  the  tenant  can  neither 
remove    them    or    recover    their 
value  from  the  landlord.     Wliite 
v.  Arndt.  91 

2.  This  rule  prevails  more  strictly 
between  tenant  for  life  or  his  les- 
see, and  the  remainder-man  ;  the 
latter  of  whom  is  not  bound  by 
any  agreement  between  the  ten- 
ant for  life  and  his  lessee,  under 
which  the  lessee  may  have  erected 
buildings  on  the  land.  Ib. 

3.  The  acceptance  of  rent  from  the 
lessee  by  the  remainder-man,  will 
not    be  deemed  a  ratification  of 
such  agreement  where  it  is  collat- 
eral to  the  lease,  and  it  does  not 
appear    that    the    remainder-man 
was  apprized  of  it.  Ib. 

FLOUR. 
See  INSPECTION  LAWS. 

FORGERY. 
See  PENAL  LAWS,  1,  4. 

FORNICATION  AND   BASTAR- 
DY. 
See  ACTION,  1. 

FRAUDS,  STATUTE  OF. 
See  ASSUMPSIT. 

GROUND  RENT. 
See  RENT. 

HABEAS  CORPUS. 
See  PENAL  LAWS,  4,  5. 

HANDWRITING. 
See  EVIDENCE,  6. 

HISTORY. 
See  EVIDENCE,  10. 


HUSBAND  AND  WIFE. 
See  FEME  COVERT. 

INSOLVENT. 
See  ACTION,  1.    LIMITATIONS,  1. 

INSPECTION  LAWS. 

A  miller  in  New  Jersey  having  con- 
tracted to  deliver  a  certain  quan- 
tity of  flour  in  New  York,  sent  it 
to  A.  a  carrier  in  Enaton  in  Penn- 
sylvania to  be  forwarded  to  New 
York.  The  Morris  Canal  being 
obstructed  by  the  ice,  a  portion  of 
the  flour  was  sent,  in  a  canal  boat 
by  A.  to  B.,  another  carrier  in 
Philadelphia,  to  be  forwarded  by 
him  by  way  of  the  Delaware  and 
Raritan  Canal  to  New  York.  On 
the  arrival  of  the  boat  at  Phila- 
delphia, the  flour  was  landed  on 
the  wharf  of  B.  and  shortly  after- 
wards put  on  board  another  ves- 
sel belonging  to  B. ;  being  a  packet 
boat  plying  on  the  canal  and  be- 
tween the  two  cities.  The  flour 
was  in  barrels  which  did  not  bear 
the  mark  or  brand  of  the  state  of 
New  Jersey ;  and  no  offer  to  sub- 
mit the  flour  to  inspection  was 
made.  Held,  under  the  act  of 
14th  April,  1835,  (1)  that  this 
flour  was  liable  to  inspection ;  (2) 
that  there  was  a  sufficient  "offer 
to  transport"  it  out  of  the  state, 
without  inspection ;  consequently, 
that  the  inspector  had  a  right  to 
seize  it  as  forfeited  ;  and  that  the 
circumstance  of  B.  being  ignorant 
of  the  fact  of  non-inspection,  was 
not  material.  Commonwealth  v. 
King.  448 

INSURANCE. 

1.  The  want  of  sea-worthiness  in  a 
vessel,  at  the  commencement  of 
the  voyage,    will  IKJ  a  sufficient 
defence  to  the  insurers  on  the  ves- 
sel, although  she  arrived  in  safety 
at  her  port  of  destination.     Pres- 
cott  v.  The  Union  Insurance  Co. 

399 

2.  Where  the  question  was  as  to  the 
sea-worthiness  of  a  vessel,  in  an 
action  by  the  insured  against  the 
insurer,  and  there  being  no  con- 
tradictory   testimony    as    to    the 
facts,  the  judge  charged  the  jury 


INDEX. 


547 


that  "if  the  facts  are  as  stated 
in  the  protest,  that  the  vessel  began 
to  leak  as  soon  as  she  began  to 
sail  or  soon  after,  and  continued 
to  leak  up  to  the  time  of  the 
storm,  or  any  fortuitous  accident, 
and  would  in  consequence  thereof 
have  required  repairs  although 
there  had  been  no  storm,  then  the 
law  says  she  was  unsea-worthy, " 
it  was  field  that  the  law  was  cor- 
rectly laid  down  to  the  jury,  and 
that  the  Court  was  right  in  not 
leaving  it  to  the  jury  to  presume 
sea-worthiness  or  otherwise.  Ib. 

INTESTATE. 
See  CONVERSION.    WILL,  7. 

JUDGMENT. 

1.  A   judgment    in   a    seire  facias 
upon  a  mortgage,  for  the  amount 
of  the  money  due  upon  the  mort- 
gage, is  a  judgment  for  a  "  debt 
or  damages,"  within  the  14th  sec- 
tion of  the  act  of  13th  April,  1791; 
which  provides  for  entering  satis- 
faction   of    such   judgment,    and 
gives  a  penalty  to  the  party  ag- 
grieved   by  the  refusal  to  enter 
satisfaction.    Henry  v.  Sims.    187 

2.  It  is  not  necessary  that  the  party 
suing    for   such    penalty,   should 
prove  that  he  has  sustained  actual 
damage  by  the  refusal  to  enter 
satisfaction :  The  jury  may  take 
into  consideration  all  the  circum- 
stances by  which  the  party  has 
suffered  vexation  and  inconveni- 
ence. Ib. 

And  see  EVIDENCE,  4.   PLEADING,  3. 
PRACTICE,  1.    SET-OFF. 

JUROR. 
See  ERROR,  3. 

JUSTICES  OF  THE  PEACE. 
See  ARBITRAMENT,  5. 

LAND  OFFICE. 

1.  Land  in  and  adjoining  the  City  of 
Philadelphia,  has  never  been  con- 
sidered to  be  within  the  jurisdic- 
tion of  the  land-office,  so  as  to  be 
the  subject  of  grant  by  warrant, 
survey  and  patent.  Prey  tag  v. 
Powell.  536 


2.  Land  on  the  navigable  rivers  of 
Pennsylvania,  between  high  and 
low  water  mark,  is  not  within  the 
jurisdiction  of  the  land-office,  so 
as  to  be  the  subject  of  such  grant. 

Ib. 

LANDLORD  AND  TENANT. 
See  FIXTURES. 

LEASE  FOR  YEARS. 
See   CONVEYANCE,    1.      FIXTURES. 

LEGACY. 
See  ATTACHMENT.    WILL,  4,  7. 

LIMITATION  OF  ACTIONS,  &c. 

1.  A  discharge  of  the  person  of  a 
debtor,  under  the  insolvent  laws 
of  this  Commonwealth,  does  not 
prevent  the  operation  of  the  stat- 
ute   of    limitat:ons    against    the 
claim  of  the  creditor.     Sletor  v. 
Oram.  106 

2.  A  parol  partition  of  lands  was 
made  in  -the  year  1820,  and  pos- 
session delivered  pursuant  to  it. 
In  1829,  a  deed  reciting  the  par- 
tition and  confirming  the  same, 
was  executed  by  all  the  parties  to 
the  partition,  excepting  the  defend- 
ant.    In  irtdebitatvs  assumpsit  to 
recover  the   amount    payable  by 
the  defendant  for  owelty  of  parti- 
tion, it  was  held  that  the  legal 
title  not  having  been  completed 
until  within  six  years  before  the 
commencement  of  the  suit,   the 
statute   of  limitations  was  not  a 
bar    to    the    plaintiff's    recovery. 
Walter  v.  Walter.  292 

3.  An    executor    or    administrator, 
sued,  in  his  representative  char- 
acter, for  a  debt  due  by  the  de- 
cedent, may  plead  the  statute  of 
limitations  as  a  bar  to  the  action  ; 
although  such  executor  or  adm  in- 
istrator  may  have  made  such  an 
acknowledgment  of  the  debt,  as, 
in  the  case  of  a  person  sued  for 
his  own  debt,  would  be  sufficient 
to  take  the  case  out  of  the  statute. 
Fritz  v.  Thomas.  66 

4.  A.   executed  a  sealed    note,   by 
which  he  promised  to  pay  to  B.  a 
certain  sum,  when  C.  (an  infant) 
should  arrive  at    the  age  of   21 


548 


INDEX. 


years,  with  lawful  interest  to  be 
paid  annually,  "in  trust  for  the 
use  of  the  said  <7."  lltld,  that  the 
lien  of  this  debt  was  gone,  upon 
the  expiration  of  seven  years  from 
the  death  of  A.  ;  a  copy  of  the  in- 
strument not  having  been  filed, 
according  to  the  provisions  of  the 
act  of  1797.  Klinker's  Appeal.  57 
And  see  PRESUMPTION.  .RENT,  4,  5. 
UNION  CANAL  Co. 


LUNATIC. 

1.  A  return  of  an  inquisition,  held 
by  virtue  of  a  commission  in  the 
nature  of  a  writ  de  lunatico  in- 
quirendo,  that  the  party,  "by 
reason  of  old  age  and  long  contin- 
ued sickness,  has  become  so  far 
deprived  of  reason  and  under- 
standing, as  to  be  wholly  unfit  to 
manage  his  estate,"  is  not  a  suffi- 
cient finding  that  the  party  is 
"non  compos  mentis; "  within  the 
constitution  and  laws  of  this  Com- 
monwealth. Beaumont"  i  Case.  52 

MANDAMUS? 
See  COUNTY  COMMISSIONERS. 

MARRIED  WOMEN. 
See  FEME  COVERT. 

MASTER. 
See  APPRENTICE. 

MORTGAGE. 

1.  A.  the  holder  of  a  mortgage  for 
$450,  by  an  instrument  under  seal, 
assigned  the  mortgage  to  B.  with 
condition  that  if  the  receipts  of  a 
certain  theatre  should  on  a  certain 
night  amount  to  $300,  B.  should 
re-assign  the  mortgage  to  him, 
and  pay  him  whatever  the  said 
receipts  should  amount  to  l>eyond 
the  said  sum  of  $300 ;  and  if  the 
receipts  should  IK;  less  than  $300, 
B.  was  to  hold  the  mortgage  as 
security  for  the  deficiency  ;  and  if 
the  same  should  be  paid  by  a  cer- 
tain time  (one  week  thereafter), 
the  mortgage  was  to  be  considered 
as  absolutely  assigned  to  B.,  his 
executors,  administrators,  &c.  B. 


assigned  the  mortgage  to  C.,  who 
brouglit  suit  upon  it,  and  sold  the 
mortgaged  premises  at  she-rill's 
sale,  the  proceeds  of  which  were 
brought  into  Court  for  distribu- 
tion. Upon  an  issue  directed  by 
the  Court,  it  was  ascertained  that 
the  receipts  of  the  theatre  on  the 
night  mentioned  in  the  assign- 
ment, were  $155.  Held,  that  the 
clause  respecting  the  absolute  as- 
signment of  the  mortgage,  was  to 
be  considered  in  the  nature  of  a 
penalty,  against  which  equity 
would  relieve  after  the  appointed 
day ;  and  that  B.  was  entitled  to 
receive,  out  of  the  money  in  Court, 
only  the  difference  between  the 
actual  receipts  of  the  theatre  and 
the  sum  of  $300.  Solomon  v.  Wil- 
son 241 


And  see  JUDGMENT,  1. 
NAL  Co. 


UNION  CA- 


NON COMPOS  MENTIS. 
See  LUNATIC. 

NORTHERN  LIBERTIES. 
See  PHILADELPHIA,  2. 

NOTICE. 

See  SHERIFF'S  SALE,  2.     UNION 
CANAL  Co. 

NUISANCE. 
See  PRESUMPTION. 

OLD  AGE. 

See  LUNATIC. 

ORPHANS'  COURT. 

1.  The  Orphans'  Court  has  not  ju- 
risdiction of  an   adversary   claim 
against  the  estate  of   a  decedent, 
where  the  estate  is  solvent ;   al- 
though  the  alleged  creditors  are 
children  of  the  decedent.     Metis's 
Appeal.  7 

2.  Lnder  the  provisions  of  the  act 
of  the  29th  of  March,  1832,  the 
Orphans'  Court  has  power  to  com- 
pel a  settlement  of  accounts  by  a 
testamentary  trustee.       Wimmer^s 
Appeal.  96 

3.  Where    a    testamentary    trustee 
had,  upon  his  application  to  the 
Court  of  Common  Pleas,  under  the 


INDEX. 


549 


act  of  the  14th  of  April,  1828, 
been  discharged  from  the  trust, 
and  a  new  trustee  had  been  ap- 
pointed on  the  application  of  the 
cestui  que  trust,  it  was  held,  that 
these  proceedings  were  conclusive, 
and  that  the  Orphans'  Court  could 
not  afterwards  compel  the  old 
trustee  to  settle  an  account  in  that 
Court.  Ib. 


PARTITION. 

See    ASSTJMPSIT.      FEME    COVERT. 
LIMITATION.    PLEADING,  4. 

PARTNERSHIP. 

1.  In  an  action  against  A.  B.  and 
C.    as    partners,    to    recover   the 
price  of  goods  sold  to  A.,  the  others 
being  dormant  partners,   the  de- 
fendants gave  in  evidence  a  release 
executed  by  the  plaintiff  to  A.  of 
all    demands,    &c.      It    appeared 
that  A.  had  executed  an  assign- 
ment to  B.  of  all  his  estate,  for 
the  payment  of  creditors,  among 
whom  B.  and  C.  were  preferred 
to  a  large  amount,  and  that  the 
release    was    executed    in    conse- 
quence of  a  stipulation  in  the  as- 
signment :  Held,  that  the  conceal- 
ment of  the  fact  of  the  partner- 
ship at  the  time  of  the  execution 
of  the  release,  was  a  fraud  upon 
the  plaintiff,   which  avoided  the 
release.     Carter  v.  Council.       392 

2.  The  liability  of  a  dormant  part- 
ner to  creditors  may  be  avoided 
by  proof  of  fraud  in  the  formation 
of  the  partnership,  if  no  part  of 
the  funds  have  been  received  by 
such  dormant  partner.     Mason  v. 
Connell.  381 

3.  It  seems  that  a  partnership  formed 
by  articles  for  a  definite  period, 
may  be  dissolved  by  either  part- 
ner before  the  termination  of  the 
period.  Ib. 

4.  One  partner  cannot,  without  the 
consent  of  the  other,  introduce  a 
stranger  into  the  firm,  nor  can  he, 
without  such  consent,    make   the 
other  partner  a  member  of  another 
firm ;   but   such  consent  may   be 
implied  from  the  acquiescence  and 
acts  of  the  parties ;  and  if  such 
other  partner  is  made  acquainted 
with  the  facts,  he  ought  to  dissent 


from  the  arrangement ;  otherwise 
he  will  be  bound  by  it.  Ib. 

5.  A.,  B.,  C.  and  D.,  copartners  un- 
der the  firm  of  A.  &  Co.,  gave 
their  promissory  note  to  the  plain- 
tiffs. Afterwards  the  partnership 
was  dissolved  by  the  retirement  of 
A.,  the  business  being  continued 
by  the  others,  under  the  firm  of 
B.  &  Co. ;  and  a  bond  of  indem- 
nity was'  given  by  them  to  A. 
against  the  debts  of  the  old  firm. 
The  firm  of  B.  &  Co.  failed,  and 
executed  an  assignment  of  their 
effects  in  trust  for  the  payment  of 
their  creditors ;  and  a  release  of 
all  demands  was  executed  by  the 
creditors,  among  whom  were  the 
plaintiffs,  who  received  a  dividend 
from  the  assignees,  on  the  note  of 
A.  &  Co.  Held,  that  by  these 
acts  of  the  plaintiffs,  A.  was  dis- 
charged from  his  liabilty  to  them. 
Bank  of  Wilmington  v.  Almond. 

169 

And  see  ARBITRAMENT,  3,  4.     EVI- 
DENCE, 5. 

PATENT. 
See  LAND-OFFICE. 

PENAL  LAWS. 

1.  The  act  of  23d  April,  1829,  en- 
titled, "A  further  Supplement  to 
an  act  entitled,  '  An  Act  to  reform 
the  penal  laws  of  the  Common- 
wealth, '  "  does  riot  repeal  the  llth 
section    of  the    act    of  the    25th 
March,  1824,  entitled,  "An  Act  to 
recharter  certain   banks,"   which 
makes  the  forgery  of  a  check  on 

i  a  bank,  felony.  'Drew  v.  The  Com- 
monwealth. 279 

2.  A  sentence  under  the  act  of  23d 
of  April,    1829,   to    "separate    or 
solitary    confinement    at    labor." 
is  good.  Ib. 

3.  Where    an    indictment    is  good, 
and  there  is  no  error  in  the  trial, 
but  the  sentence  is  defective,  this 
Court  will  not  send  back  the  pri- 
soner for  a  new  trial,  but  will  sen- 
tence him  de  novo.  Ib. 

4.  Where    a    person,    convicted    of 
passing    counterfeit    bank    notes, 
was  sentenced  in  the  year  1828, 
to    imprisonment    at    hard    labor 
for  a  certain  number  of  years  in 


INDEX. 


the  jail  and  penitentiary  for  the 
city  and  county  of  Philadelphia, 
and  in  pursuance  of  that  sentence, 
was  confined  in  the  Walnut-afreet 
Prison,  in  the  City  of  Philadelphia ; 
and  upon  the  Rale  of  that  building, 
was  removed  with  other  prisoners 
to  the  Arch-street  Prison  in  the 
same  city,  and  there  kept  without 
being  put  at  hard  labor,  it  was 
held,  that  he  was  not  'entitled  to 
be  discharged  on  habeas  corpus. 
Pember's  case.  439 

5.  A  person  convicted  in  the  City 
and  County  of  Philadelphia,  and 
sentenced    in    1830,   to  imprison- 
ment in  the  jail  and  penitentiary 
in  that  City  and   County,    for  a 
term  of  two  years  or  more,  ought, 
upon  the  sale  of  that  prison,   to 
have  been  removed  to  the  Eastern 
Penitentiary,  and  not  to  the  Moy- 
anicnsing  prison  ;  but  this  Court 
will  not  for  that  cause  discharge 
the    prisoner    on    habeas    corpus. 
Redd  ill' s  case.  445 

6.  It  is  not  sufficient  reason  for  al- 
lowing   a    writ    of    error,    after 
conviction    upon    an    indictment 
for    murder    by   poison,  that  the 
indictment  did  not  aver  that  the 
prisoner  knew  the  substance  em- 
ployed to  be  a  deadly  poison  ;  nor 
that  the  indictment  did  not  aver 
that  the  poison  was  given  to  the 
dece  ased  by  the  prisoner  or  any  one 
else.    Commonwealth  v.  Earle.  525 

7.  On  an   indictment    for    murder, 
perju'trated  by.  me-ans  of  poison, 
a     verdict    finding    the     prisoner 
"Guilty  in  manner  and   form   as 
stated    in    the   indictment,"   is  a 
convie^tion  of  murder  in  the  first 
degree,  and  sufficient  to  authorize 
the  judgment  of  death.  Ib. 

8.  When-,  after  a  conviction  upon 
an  indictment  for  an  assault  uj)on 
an  inspector  in  the  execution  of 
his  duty,  a  motion  for  a  new  trial 
was    made ;    and    pending    that 
motion   an   act  of  Assembly  was 
passed,    which    repealed   the   par- 
ticular provision  of  the  law  under 
which    the    inspector    acted,    the 
Court      arrested     the    judgment. 
Commonwealth  v.  King.  400 

PENALTY. 
See  MORTOAOE. 


PENITENTIARIES. 
See  PENAL  LAWS,  2,  4,  5. 

PHILADELPHIA,    (City   and 
County.) 

1.  The    North-eastern    square     of 
ground   in   the   city   of    Philadel- 
phia, now  called   "The  Franklin 
Square,"  was  dedicated  to  public 
use  by  William  Penn  at  the  foun- 
dation of  the  city  ;  so  that  neither 
he  nor  any  person  succeeding  to 
his    title,    as    proprietary,    could 
afterwards    grant    the    exclusive 
use  of  any  part  of  the  same  to 
any    person    or    corporation.      A 
grant  therefore,  of  a  part  of  the 
Square    in    1741,    to    a    religious 
Corporation,  for  the  purpose  of  a 
burying  ground,  was  held  to  be 
void.     Commonwealth  v.  Alburger. 

469 

2.  The    public    wharf    or    landing 
place,     called     "the      Hay-scales 
Landing"  in  the  Northern  Liber- 
ties, of  the  city  of  Philadelphia, 
and  the  public  wharf  or  land;ng 
place  on  the  south  of  and  adjoin- 
ing Callowhill  street,  in  the  same 
district,    were,  by  the  act  of  the 
16th  of  March,  1819,  vested  in  the 
board    of    commissioners    of   the 
incorporated  district  of  the  North- 
ern Liberties,  in  tmst  for  the  use 
of  the  public  generally  ;  and  neither 
the  district  of  Spring  Garden,  nor 
the  township  of  Penn.  nor  the  un- 
incorporated part  of  tlie  Northern 
Liberties,    has    any   right  to  any 
part  of  the  value  or  income  of 
those   wharves  or  landing  places 
or  either  of  them.     Spring   Gar- 
den v.  Nort/iern  Liberties.  25 

And  see  CORPORATION,  1.  EVI- 
DENCE, 8,  9.  LAND  OFFICE,  1. 
PENAL  LAWS,  4,  5. 

PLEADING. 

1.  In  trespass  against  a  sheriff  and 
others  for  taking  the  plaintiffs 
gocxls,  the  defendants  may  give  in 
evidence  under  the  general  issue 
that  the  goods  were  the  property 
of  A.,  at  the  time  of  the  alleged 
trespass,  and  that  they  (the  de- 
fendants,) took  them  under  a 
judgment,  and  execution  against 
A.  ATBride  v.  Duncan.  269 


INDEX. 


551 


2.  Where   such    matter  is   pleaded 
specially,  the  court  will  strike  off 
the  special  pleas,  although  they 
allege  that  the  plaintiff   was  in 
possession  of  the  goods  by  a  bail- 
ment from  A.  for  safe  keeping,  or 
by  a  fraudulent  conveyance  from 
him.  Ib. 

3.  Qucere,  whether  an  averment  of 
a  judgment  for  $6000,  is  supported 
by  a  record  showing  a  judgment 
entered  by  the  prothonotary,   in 
pursuance  of  the  Act  of  1806,  by 
virtue  of  a  warrant  of  attorney 
accompanying  a  bond  in  the  penal 
sum  of  $12,000,    conditioned  for 
the  payment  of  $6000  with  inter- 
est? Ib. 

4.  Where  there  was  a  special  count 
in  an  action  of  assumpsit,  which 
alleged,  that  the  plaintiff,  defend- 
ant and  others,  being  tenants   in 
common  of  land,  appointed  certain 
persons  to  make  partition  and  ap- 
praisement,  and  that  the  persons 
so  appointed  did  make  partition 
and  appraisement ;  in  consequence 
of  which  the  defendant  became 
liable  to  pay  the  plaintiff  a  certain 
sum  for  owelty,  &c. ;  and  there 
was  also  a  count  in  indebitatus  as- 
sumpsit; and  a  third  count  was 
on  an  insimul  computassent ;  and 
the  evidence  offered  was  of  a  par- 
tition made  by  the  tenants  in  com- 
mon among  themselves,  and  of  a 
valuation  only,  by  the  appraisers  ; 
it   was   held,    that  although  this 
evidence  was    variant    from    the 
special  count,  yet  as  the  plaintiff 
was  entitled    to  recover    on    the 
second    count,  the  variance    was 
not  cause    of   demurrer.     Walter 
v.  Walter.  292 

And  see  ACTION,  2.  AMENDMENTS. 
EVIDENCE,  4.  FEME  COVERT. 

POSSESSION. 
See  SHERIFF'S  SALE,  2.    • 
PRACTICE. 

1.  Under  the  4th  section  of  the  18th 
rule  of  this  Court,  judgment  can- 
not be  entered  on  a  verdict  render- 
ed at  Nisi  Prius,  within  the  first 
four  days  of  the  term,  nor  during 
the  pendency  of  a  motion  for  a 
new  trial,  unless  the  Court  shall 


have  ordered  judgment  to  be  en- 
tered for  the  plaintiff  to  stand  as 
security.  Britton  v.  Stanley.  267 
2.  Affidavits  to  hold  to  bail  made 
by  the  plaintiff  (residing  in  New 
York,)  and  his  clerk  in  Philadel- 
phia, which  set  forth  that  the  de- 
fendant was  indebted  to  the  plain- 
tiff in  a  certain  sum,  "a  part  of 
which"  was  for  money  lent  and 
advanced  by  the  plaintiff  to  the 
defendant,  and  "the  rest  of  the 
principal  sum"  was  due  "for  the 
balance  which  the  defendant  owes 
the  plaintiff  on  settlement,  in 
transactions  in  which  the  plain- 
tiff, by  the  defendant's  request, 
and  as  his  agent,  made  purchases 
and  sales  for  the  defendant,  but 
in  the  plaintiff's  name,  by  which 
he  stands  indebted  to  third  per- 
sons, and  the  defendant  is  indebted 
to  him  in  the  said  sum ;  the  pre- 
cise amount  and  extent  of  which 
balance  cannot  be  stated  now,  be- 
cause the  defendant  suddenly  left 
New  York,  without  coming  to  any 
settlement,  &c.,"  and  that  the  de- 
fendant, on  being  required  to  pay, 
did  not  deny  the  debt  or  the 
amount :  Held  to  be  sufficient. 
Camman  v.  Hind.  320 

And  see  ARBITRAMENT,  1,  2.  COSTS. 
ERROR,  2, 4.  EXECUTION.  PENAL 
LAWS,  3.  SET  OFF. 

PRESUMPTION. 

1.  A  grant  will  not  be  presumed  of 
a  part  of  a  public  square  or  street, 
from  the  lapse  of  time ;  so  as  to 
bar  an  indictment  for  a  nuisance. 
Commonwealth  v.  Alburger.  469 

And  see  RENT,  4,  5. 

PRINCIPAL  and  AGENT. 
See  EVIDENCE,  7. 

PROMISSORY  NOTE. 
See  ASSIGNMENT,  2,  3. 

PURCHASER. 

See  SHERIFF'S  SALE,  2.    UNION  CA- 
NAL Co. 

RECOVERY,  (COMMON.) 
1.  A.  tenant  in  tail,  by  indenture  of 
bargain  and  sale,   dated  the  23d 


552 


INDEX. 


of  November,  1797,  and  acknow- 
ledged on  the  24th  of  the  name 
month,  in  consideraiion  of  $2218, 
conveyed  the  estate  lo  B.  and  C. 
his  wife,  their  heirs  and  assigns, 
with  a  covenant  for  further  assu- 
rance. By  another  deed  of  bar- 
gain and  sale,  dated  the  24th  ot 
November,  1797,  and  acknow- 
ledged on  the  same  day,  A.  in 
consideration  of  five  shillings,  and 
for  the  purpose  of  barring  the  es- 
tate tail,  &c.,  conveyed  the  same 
estate  to  B.  and  his  heirs,  to  the 
intent  and  purpose  that  B.  should 
become  tenant  of  the  freehold, 
and  be  seized  thereof,  until  a  com- 
mon recovery,  with  single  vouch- 
er, should  be  had,  &c.  and  it  was 
covenanted  that  A.  should,  before 
kthe  end  of  the  next  term,  penult 
and  sufler  B.  to  sue  forth  a  writ  of 
entry,  &c.  against  him  (A.)  in  the 
Court  of  Common  Pleas,  &c.,  so 
that  judgment  might  be  thereupon 
had  against  him  (A.),  &c ;  and 
the  uses  of  the  said  recovery  were 
declared  to  be,  that  B.  and  his 
heirs  should  stand  seized  of  the 
premises,  to  the  us^e  of  the  said  B., 
his  heirs  and  assigns,  &c.  On  the 
same  24th  of  November,  A.,  by 
letter  of  attorney,  reciting  that  he 
w  as  about  to  proceed  on  a  voyage 
by  sea,  appointed  two  persons  his 
attorneys,  to  appear  for  him  in 
the  said  recovery,  declaring  the 
same  and  the  uses  thereof  as  in 
the  last  mentioned  deed.  A  writ 
of  entry,  *iir  ditseuin,  &c.,  tested 
the  9th  of  December,  1797,  isssued 
at  the  suit  of  B.,  demandant, 
against  A.,  tenant,  returnable  at 
the  March  term  following  of  the 
Court  of  Common  Pleas  ;  at  which 
term  a  common  recovery,  with 
single  voucher,  was  suffered  ;  and 
a  writ  of  ttirin,  tested  the  9th  of 
March,  1798,  issued  accordingly. 
On  the  19th  of  December,  1797, 
B.,  with  C.  his  wife,  in  considera- 
tion of  $2218,  conveyed  the  pre- 
mises to  D.  in  fee.  In  an  eject- 
ment (instituted  in  1829)  by  the 
heir  in  tail  of  A.,  against  a  pur- 
chaser under  D.,  it  was  held,  that 
the  second  deed  was  to  be  consid- 
ered a  nullity  ;  that  the  first  deed 
was  to  be  taken  as  declaring  the 
uses  of  the  recovery  ;  and  that  the 
recovery  was  well  suffered,  and 


operated  to  vest  the  estate  in  B. 
and  his  wife,  to  the  use  of  their 
vendee.  Sharp  v.  Thompson.  139 

REFERENCE. 
See  ARBITRAMENT. 

RELEASE. 

See  ASSIGNMENT.    PARTNERSHIP,  1, 
5.     RENT,  2,  3,  4. 

RENT. 

1.  A    ground-rent  in  Pennsylvania, 
i.  e.  a  rent  reserved  to  himself  and 
his  heirs  by  the  grantor  of  lands 
in  fee,  is  a  rent-service,  and  not  a 
rent-charge.      Ingersoll     v.     Ser- 
geant. 337 

2.  A  release  of  part  of  the  land  out 
of  which  such  ground  rent  issues, 
from  the  rent,  does  not  extinguish 
the  whole   rent,  but  merely  dis- 
charges   the    part    released,    and 
leaves  the  remaining  part  of  the 
land  subject  to  its  due  proportion 
of  the  rent.  Ib. 

8.  A.  being  seised  of  a  lot  of  ground 
in  the  city  of  Philadelphia,  which 
was  subject  to  a  redeemable 
ground  rent  of  $351  per  annum, 
oil  the  9th  of  October,  1818,  con- 
veyed the  said  lot  to  B.  in  fee, 
free  and  discharged  from  the 
rent ;  and  covenanted  in  the  con- 
veyance to  extinguish  the  said 
rent,  within  the  time  limited  in 
the  original  deed,  or  within  any 
extended  time  for  extinguishing 
the  same,  and  in  the  meantime  to 
keep  B.  indemnified,  &c.  On  the 
18th  of  October,  the  holder  of  the 
ground-rent  conveyed  the  same  to 
C.,  who  on  the  6th  of  February, 
1819,  agreed,  by  endorsement  on 
the  deed,  to  extend  the  time  of  re- 
demption for  10  years.  On  the 
30th  of  April,  1819,  B.  conveyed 
to  D.  in  fee,  a  part  of  the  lot  con- 
veyed to  him  by  A.,  reciting  that 
it  was  part  of  a  large  lot  of  ground, 
which  A.  by  indenture  bearing 
date,  &c.  granted  and  conveyed  to 
him  in  fee,  "clear  of  all  liens  and 
incumbrances  whatsoever."  On 
the  1st  of  May,  1819,  C.  by  deed 
endorsed  on  the  conveyance  to  D., 


INDEX. 


553 


in  consideration  of  $1,  released 
the  lot  conveyed  to  him  from  the 
payment  of  the  said  ground-rent, 
with  a  proviso,  that  nothing  there- 
in contained  should  be  taken  to 
impair  his  right  to  recover  the 
ground-rent  from  the  remaining 
part  of  the  lot.  On  the  3d  of 
May,  1819,  C.  by  deed  reciting 
the  conveyance  of  the  ground-rent 
to  him,  the  agreement  for  extend- 
ing the  time  of  redemption,  and 
the  release  to  D.,  conveyed  the 
said  ground-rent  to  the  defendant 
in  fee.  In  point  of  fact,  (though 
nothing  appeared  on  the  face  of 
the  papers  to  show  it, )  the  ground- 
rent  was  originally  purchased  by 

C.  with  the  money  of  A.,  and  was 
held  by  him  in  trust  for  A.  ;  but 
the  defendant  had  no  notice  of  the 
trust ;  Held,  1st.  That  the  ground- 
rent  was  not  extinguished  by  the 
conveyance  to  C.  in  trust  for  A. ; 
nor  by  the  extension  of  .the  time 
for   the    redemption    of    it.     3d. 
That  B.  was  not  estopped  by  the 
recital  in  his  deed  to  D.,  so  as  to 
subject  his  remaining  part  of  the 
lot  to  the  whole  ground-rent.     3d. 
That  the  entire  ground-rent  was 
not  extinguished  by  the  release  to 

D.  ;  but  only  so  much  was  extin- 
guished as  was  equal  to  the  value 
of  the  lot  conveyed  to  D.  ;  com- 
pared with  the  value  of  the  whole 
lot.  Ib. 

4.  Mere  lapse  of  time  without  de- 
mand of  payment,  is  not  sufficient 
to    raise    a    presumption    that    a 
ground-rent    created    by  a    valid 
deed,  has  been  released,  or  other- 
wise   extinguished.      St.     Mary's 
Church  v.  Mies.  229 

5.  The  lapse  of  twenty  years  with- 
out demand  of  payment,   is  evi- 
dence   from    which    a  jury  may 
presume  payment  of  the  arrears 
of  the  ground-rent ;  but  such  pre- 
sumption may  be  repelled  by  cir- 
cumstances. Ib. 

6.  A  testator  devised  a  small  annual 
ground-rent  to  a  servant  for  life  : 
His  executors  not  being  aware  of 
the  testator  owning  such  a  ground- 
rent,  or  not  finding  the  person  by 
whom  it  was  payable,    paid  the 
amount  to  the  devisee  from  time 


to  time,  as  an  annuity  ;  Held,  that 
these  payments  were  not  to  be 
considered  as  a  satisfaction  of  the 
ground-rent  pro  tanto ;  but  that 
the  devisee  was  entitled  to  recover 
the  arrears.  Ib. 

1.  The  owner  of  a  ground-rent,  in 
fee,  is  not  liable  for  any  part  of 
the  taxes  assessed  upon  the  land, 
out  of  which  the  rent  issues. 
Philadelphia  Library  Company  v. 
Ingham.  72 

RIGHT  OF  WAY. 
See  WAY. 

SATISFACTION. 
See  JUDGMENT.    RENT,  6. 

SAVINGS  INSTITUTION. 
See  CORPORATION,  1. 

SEA-WORTHINESS. 
See  INSURANCE. 

SET-OFF. 

1.  A  judgment  for  costs  obtained 
against  an  administrator,  plaintiff 
in  another  Court,  and  assigned  by 
the  defendant  there  to  A.,  cannot 
be  set  off  against  a  judgment  for 
damages  obtained  by  such  admin- 
istrator against  A.  in  this  Court. 
Mi  Williams  v.  Hopkins.  275 

SHERIFF'S  SALE. 

1.  A  testator,  by  his  will,  proved  in 
1814,  devised  all  his  estate  to  his 
wife  for  life,  and  after  her  decease, 
to  his  five  children.     In  1825,  his 
widow  obtained  letters  of  admin- 
istration, cum  testamento  annexo, 
and,  in  her  character  of  adminis- 
tratrix, confessed  a  judgment  to 
the  commissioners  of  Spring  Gar- 
den, for    a    certain    sum,    which, 
by  the  statement  in  the  case,  ap- 
peared to  be  for  paving  done,  in 
1820,   in  front  of   a  certain    lot, 
which  had  belonged  to  the  testa- 
tor.    By  virtue  of  an  execution  on 
this  judgment,  the  lot  was  sold  at 
sheriff's  sale  :  Held,  that  the  pur- 
chaser acquired  no  more  than  the 
life  estate  of  the  widow.     Loud  v. 
Bull.  238 

2.  Where  the  owner  of  a  lot  of  land 


554 


INDEX. 


containing  about  twenty  acres, 
conveyed  one  acre  of  meadow  land 
to  A.,  who  neglected  to  record  his 
deed,  but  took  possession  and 
planted  it  with  willows  for  the 
purposes  of  his  trade  of  basket- 
making,  which  willows  he  cut 
every  year  at  the  proper  season, 
and  he  continued  in  this  possession 
about  14  years,  when  the  land  of 
his  vendor  was  sold  at  a  sheriffs 
sale ;  it  was  held  that  the  posses- 
sion of  A.  was  sufficiently  distinct 
and  unequivocal  to  give  notice  to 
the  purchaser  at  the  sheriffs  sale. 
Xridtr  v.  Lafferty.  303 

And  see  ARBITRAMENT,  5.     EVI- 
DENCE, 2. 

SPRING  GARDEN. 
See  PHILADELPHIA,  2. 

STATUTES,  (British.) 

1.  The  statute  of  Quia  Emptores, 
(18  Edw.  1,  st.  1,  c.  1.)  never  was 
in  force  in  Pennsylvania.  Inger- 
toll  v.  Sergeant.  337 

STOCKHOLDERS. 
See  CORPORATION,  1. 

TAXES. 
See  RENT,  7. 

TENANT  IN  TAIL. 
See  RECOVERY. 

TESTIMONY,    PERPETUATION 

OF. 
See  COSTS,  1. 

TRESPASS. 

1.  Trespass  will  lie  by  the  owner  of 
a  fishery,  for  a  direct  interruption 
to  the  exercise  of  his  right.     Hart 
v.  Hill.  124 

2.  In  trespass  for  breaking  the  plain- 
tiff's close,  and  carrying  away  his 
goods,  evidence  of  the  value  of  the 
goods  is  admissible  on  the  part  of 
the  plaintiff*,  although  he  may  have 
brought    replevin    for    the    same 
goods,  if  the  defendant  has  plead- 
ed property  in  that  action,  and  it 
IB  still  depending  ;  and  a  fortiori, 
if  it  has  been  discontinued,  though 
such  discontinuance  was  after  the 


commencement  of  the  trial  of  the 
action  of  trespass.  Krider  v. 
Lafferty.  303 

And  see  PLEADING,  1,  2. 

TROVER. 
See  AMENDMENTS,  4. 

TRUSTEE. 

1.  A  testator  having  two  daughters, 
A.  and  B.  and  no  other  children  ; 
and  having  certain  shares  of  bank 
stock,  bequeathed  one-half  of  the 
number  of  shares  to  his  daughter 
A.  who  was  at  that  time  unmar- 
ried ;  but  said  nothing  respecting 
the  remaining  shares.  He  gave 
several  legacies  of  other  stocks 
and  effects  to  A.  and  B.,  and  ap- 
pointed his  nephew  C.,  his  son-in- 
law  D.  (husband  of  B.)  and  his 
two  daughters  A  and  B.  to  be  ex- 
ecutors. About  a  month  after  the 
probate  of  the  will,  A.  by  an  in- 
strument (not  actually  sealed)  re- 
citing that  the  omitted  shares  were 
believed  to  have  been  intended  by 
her  father  for  her  sister  B.,  grant- 
ed, assigned,  &c.  the  said  shares 
to  B.  for  her  sole  and  absolute 
property,  and  requested  the  ex- 
ecutors of  her  father,  to  transfer 
them  to  her.  The  shares  were 
accordingly  transferred  by  the  ex- 
ecutors to  B.  ;  and  in  the  settle- 
ment of  their  accounts,  they  claim- 
ed credit  for  such  transfer  :  Held, 
on  exception  to  such  credit,  that 
in  the  absence  of  evidence  of  mis- 
take or  direct  fraud  or  imposition, 
there  was  nothing  in  the  relation 
in  which  C.,  the  executor,  or  his 
wife  B.  stood  towards  A.,  to  re- 
quire the  Court  to  rescind  the  as- 
signment and  transfer.  Delama- 
Ur's  Ettate.  362 


And  see  ASSIGNMENT,  1. 
COURT,  2,  3. 


ORPHANS' 


UNION  CANAL  COMPANY. 

1.  In  1792,  an  act  of  the  legislature 
was  passed,  to  incorporate  a  com- 
pany for  opening  a  canal  between 
the  rivers  Delaware  and  Schuyl- 
kill,  which  authorized  the  corpo- 
ration to  purchase,  take,  and  hold 
all  such  real  estate  as  should  be 


INDEX. 


555 


necessary  for  them  in  the  prose- 
cution of  their  works  :  in  pursu- 
ance of  which  they  proceeded  to 
lay  out  the  canal,  part  of  which 
passed  through  the  land  of  A., 
who  was  stockholder  in  the  Com- 
pany. In  1793  a  parol  agree- 
ment was  made  between  the  Com- 
pany and  A.  for  the  price  of  that 
part  of  his  land  taken  for  the 
canal ;  which  agreement  was  re- 
cognized by  a  bill  or  memorandum 
in  writing  made  by  A.  in  1798. 
About  the  year  1793,  the  canal 
was  actually  dug  through  the 
land  of  A. ;  but  the  communica- 
tion between  the  two  rivers  was 
never  completed ;  and  after  the 
year  1795,  nothing  further  was 
done  in  opening  the  communica- 
tion by  this  Company ;  but  the 
strip  remained  within  the  fences 
of  A.  ;  and  with  the  remainder  of 
his  land,  was  at  one  time  let  to  a 
tenant  for  years,  who  used  part  of 
it,  with  the  other  ground,  for  the 
purpose  of  raising  grain.  In  1811, 
an  act  was  passed,  authorizing  a 
junction  of  the  Delaware  and 
Schuylkill  Canal  Co.  with  the 
Schuylkill  and  Susquehanna  Navi- 
gation Co.  under  the  name  of  the 
Union  Canal  Co.,  by  virtue  of 
which  all  the  estates,  rights  and 
privileges  of  the  two  companies 
were  vested  in  the  new  corpora- 
tion. In  1819,  another  act  of  the 
legislature  required  the  Union 
Canal  Co.  to  confine  their  opera- 
tions to  the  completion  of  the  com- 
munication between  the  Schuyl- 
kill and  the  Susquehanna.  In 
1821  A.  accepted  certificates  for 
10  shares  of  stock  of  the  Union 
Canal  Co.  in  lieu  of  his  stock  in 
the  old  Delaware  and  Schuylkill 
Canal  Co.  In  June  1833,  part  of 
the  land  of  A.,  which  being  in  the 
immediate  vicinity  of  Philadel- 
phia, had,  in  the  mean  time,  greatly 
appreciated  in  value,  was  sold 
for  building  lots  to  B.  and  C.  who 
gave  mortgages  for  the  purchase- 
money.  In  an  ejectment  instituted 
to  Dec.  term,  1833,  by  the  Union 
Canal  Co.  against  the  heirs  of  A., 
and  the  purchasers  under  them,  it 
was  held,  (1st.)  That  the  plaintiffs 
acquired  a  right  to  the  soil,  occu- 
pied or  taken  for  the  canal,  and 
not  merely  an  easement  therein. 
VOL.I. — 37 


(3d.)  That  the  possession  of  A. 
was  not  to  be  considered  as  ad- 
verse to  the  plaintiff's,  so  as  to 
give  effect  to  the  statute  of  limi- 
tations. (3d.)  That  the  abandon- 
ment of  the  canal,  and  the  disso- 
lution of  the  old  company  in  1811, 
did  not  raise  any  equity,  which 
would  avail  the  defendants  as  a 
defence,  or  authorize  them  to  treat 
the  contract  as  rescinded.  (4th.) 
That  supposing  B.  and  C.  to  be 
purchasers  without  notice,  they 
were  not  entitled  to  protection 
further  than  as  they  had  actually 
paid  the  purchase-money ;  the 
mortgages  not  being  considered  as 
payment.  Union  Canal  Co.  v. 
Young.  410 


WARRANT  AND  SURVEY. 
See  LAND  OFFICE. 

WAY,  (RIGHT  OF.) 

1 .  The  owner  of  a  large  lot  of  ground 
situate  on  the  east  side  of  Fourth 
street,  in  the  City  of  Philadelphia, 
granted  to  A.  in  fee  a  part  of  the 
same,  being  a  lot  25  feet  in  front, 
and  in  depth  about  100  feet ; 
bounded  east,  by  a  brick  stable, 
standing  in  the  line  of  the  lot ; 
"together  with  the  full  and  free 
privilege  and  authority  of  ingress, 
egress,  and  regress,  by,  through, 
and  upon  a  4  feet  6  inches  alley, 
extending  in  and  about  45  feet 
from  4th  street,  to  be  forever  left 
open  between  the  lot  hereby 
granted,  and  the  house  now  occu- 
pied by  B.,"  reserving  a  perpetual 
ground  rent,  with  a  covenant  by 
A.,  to  pay  the  same,  and  to  build 
within  a  limited  time  a  good  three 
story  brick  house  upon  the  lot 
thus  granted  to  him.  A.  erected 
a  house  with  back  buildings,  ex- 
tending to  the  eastern  boundary 
of  the  lot.  Several  years  after- 
wards, C.  purchased  the  whole  of 
the  large  lot  with  the  buildings  on 
it,  including  that  occupied  by  B., 
but  excepting  the  house  and  lot 
belonging  to  A.  The  deed  to  C. 
described.  A.'s  lot  as  being  one  of 
the  boundaries,  and  contained  the 


INDEX. 


following  clause,  "Subject  to  the 
full  ami  free  privilege  and  author- 
ity of  ingress,  egress  ami  regress, 
granted  by,  &c.  (reciting  the  deed 
to  A.,  by,  through,  and  upon  a  4 
feet  C  inches  alley  along  side  of 
the  north  line  of  (A.'s)  lot,  and 
extending  in  and  about  45  feet 
from  Fourth  street,  to  be  forever 
left  open  between  (A.'s)  said  lot 
and  the  house  included  in  this 
grant,  formerly  occupied  by  B." 
&c.  There  was  an  alley  leading 
into  Market  street,  and  another 
passage  into  Fourth  street,  com- 
municating with  the  stable  yard. 
lltld,  that  C.  had  no  right  to  con- 
t'nue  the  4  feet  6  inches  alley  to 
the  stable  wall,  and  thence  pass 
from  the  stable  into  Fourth  street, 
along  the  alley  on  the  north  side 
of  A.'s  house.  Kirkham  v.  Sharp. 

323 

WILL. 

1.  A  testator  devised  as  follows: — 
"I  give  to  my  son,  T.  N.,  all  my 
house  and   lot  situate   in   Spruce 
Street,  Philadelphia,  as  soon  as  he 
shall  arrive  at  the  age  of  twenty- 
one  years,  him  and  his  lawful  heirs 
forever  ;  and  in  case  of  his  death, 
without   lawful   issue,   then    said 
house   and    lot  to  be  sold  to  the 
best  advantage,  and  the  amount 
thereof  equally  divided  among  my 

.surviving  children."  Held,  that 
T.  N.  took  an  estate  tail.  Sharp 
v.  Thompson.  139 

2.  A  testator  In-gan  his  will  thus, 
"I,  A.  C.  C.  frel  myself  in  declin- 
ing state  of  body,  and  knowing  the 
certainty  of  death,  and  not  know- 
ing the  time  thereof;"  after  cer- 
tain bequests  he  gave  to  A.  "or 
to  her  heirs  or  assigns  one  three 
Ktory  brick  house  in  Arch  street, 
No.  03.     Further  I  winh  to  gice 
to    TV".     C.    one  other   three  story 
/."/.,,     in    Arch    street,   No.   05 " 
the  will  concluding  thus,  and  not 
l>eing    signed     by    the    testator : 
Held,  that  W.  C.  took  only  a  life 
estate  in  the  house  devised  to  him. 
Burr  v.  Sim.  252 

3.  A  testator  having  given  the  resi- 
due and  remainder  of  his  estate, 
real  and   personal,  to  J.  B.  "his 


heirs  and  assigns  forever,"  charged 
with  the  payim  nt  of  debts.  I'mnral 
expenses,  and  certain  small  lega- 
cies, added  the  following  proviso  : 
" Provided,  that  in  case  the  said 
J.  B.  doth  not  return  to  Philadel- 
phia, from  his  present  intended 
voyage  to  South  America,  or  in 
case  he  doth  not  return  to  Phila- 
delphia, within  a  reasonable  time 
after  my  decease,  but  departs  this 
life  without  lawful  issue,  then,  and 
in  such  case  or  cases,  all  my  said 
messuage,  lot,  and  residuary  es- 
tate, real  and  personal,  inteinlrd 
for  the  said  J.  B.  shall  go  to,  and 
I  do  hereby  give,  devise,  and  be- 
queath the  same  to  A.  B.  &c., 
their  heirs  and  assigns,"  subject 
to  the  same  charges :  Held,  that 
the  proviso  was  to  be  taken  to  refer 
to  a  dying  without  issue  on  the 
contemplated  voyage ;  and  J.  B. 
having  returned  from  the  voyage 
in  the  life  time  of  the  testator,  he 
took  a  fee  simple  in  the  real  estate. 
M '  Carthy  v.  Dawson.  4 

4.  A  testator  after  several  legacies 
of  bank  stock  and  other  stock  and 
money,  concluded  his  will  as  fol- 
lows:     "The    remainder    of   my 
worldly   substance,    consisting    of 
furniture,  bedding,  carpets,  china, 
kitchen  furniture,  looking  glasses, 
and  crockery,  &c.  &c.  I  give  to 
my  two  daughters  to  be  dividi  d 
between  them,  part  of  which  they 
are  at  liberty  to  sell,  if  they  shall 
not  need  them.     These  with  all 
money  of  mine  that  may  remain  in 
bank   at  the   time  of  my   death, 
with  all    claims    or    demands    of 
whatever  nature,  I  give  to  my  two 
daughters,  hoping  that  they  may 
live  to  enjoy  much  contentment 
and  happiness."     The  testator  had 
several  shares  of  bank  stock  and 
other  stock,   not   specifically  be- 
queathed:    Held,   that    they    did 
not  pass  under  the  above  bequest. 
Delamater's  Estate.  302 

5.  A  will  executed  in  1748,  contained 
the  following  clause  :  "I  give  and 
devise  unto  my  cousin,  J.  T.,  son 
of  my  brother  T.  T.,  my  messuage 
or  tenement    and    tract    of   land 
where  I  dwell,  bounded   by  the 
several  courses  along  the  line  run 
to  Darby  creek  ;  thence  down  the 


INDEX. 


557 


said  creek  to  the  river ;  thence 
by  the  river  to  the  place  of  begin- 
ning   to  him  and  his  heirs 

lawfully  descending  from  his  body, 
and  in  default  of  such  heirs,  to  my 
right  heirs  forever."  In  a  subse- 
quent clause  of  the  same  will,  was 
the  following  devise  ;  "I  give  and 
devise  to  D.  S.  my  fishing  place,  to 
him  and  his  heirs  forever;  and 
likewise  it  is  my  will,  that  he  shall 
have  the  help  and  use  of  my  ne- 
groes, M.  and  H.,  one  month  in 
each  year,  in  fishing  time,  till  they 
respectively  attain  to  thirty  years 
of  age."  Held,  that  D.  S.  did  not 
acquire  by  this  clause,  any  right 
hi  the  soil  on  the  bank  of  the 
river,  but  merely  an  easement,  or 
so  much  use  of  the  shore  as  was 
necessary  for  the  purpose  of  the 
fishery.  Hart  v.  Hill.  124 

6.  A  testator  gave  to  his  wife  all  his 
estate  real  and  personal,  that 
should  remain  after  payment  of 
his  debts,  &c.,  adding,  "but  if  it 
shall  be  the  opinion  of  my  execu- 
tors, that  my  said  estate  is  more 
than  sufficient  for  the  comfortable 
support  of  my  said  beloved  wife 
during  her  life,  then  I  direct  them 
to  pay  to  L.  the  sum  of  £100 
when  the  settlement  of  my  affairs 
shall  admit  of  its  being  done  with- 
out inconvenience  to  my  aforesaid 
wife,  &c.  And  I  further  direct 
tliem  to  pay  or  transmit  to  my 
nephew  R.  H.  L.,  one-half  of  the 
remainder  of  the  said  property,  if 
any  there  should  be,  that  my  said 
wife  may  die  possessed  of;  and  the 
other  half  I  leave  to  her  disposal." 
The  widow  of  the  testator  after- 
wards made  her  will,  which,  be- 
sides various  legacies,  contained 
the  follow :rg  :  "Item — I  devise 
and  direct  tha  one-half  part  of  all 
my  estate  (alter  payment  of  my 
just  debts  and  funeral  expenses,) 
be  paid  to  the  heirs  or  legal  re- 
presentatives of  R.  H.  L.,  agree- 
ably to  the  will  and  intention  of 
my  late  husband,  excepting  there- 
out my  household  furniture,  which 
I  dispose  of  as  hereinafter  men- 
tioned. Held,  that  R.  H.  L.  was 
entitled  to  one-half  part  of  the  re- 
mainder of  the  testator's  estate, 
and  not  to  the  half  part  of  the 
estate  of  the  widow.  Moore  v. 
Hampton.  433 


7.  One  having  large  real  and  per- 
sonal estates,  and  whose  nearest 
relations  were  a  brother  and  the 
children  of  a  brother  and  sister, 
made  his  will,  dated  in  February, 
1830,  in  which  were  the  following 
provisions;  (1.)  He  devised  a 
house  and  lot  of  ground  in  France 
to  his  brother  and  one  of  his 
nieces,  during  the  life  of  his  bro- 
ther, and  thereafter  one  moiety  to 
the  said  niece  and  the  other 
moiety  to  six  children  of  his  said 
brother.  (2.)  He  gave  legacies  of 
different  sums  to  his  brother  and 
nephews  and  nieces ;  some  of  the 
legacies  being  to  trustees  for  the 
separate  use  of  married  nieces. 
(3.)  He  then  gave  the  residue  of 
his  estate  to  "the  Mayor,  Alder- 
men and  citizens  of  Philadelphia, ' ' 
in  trust  for  the  establishment  of  a 
college  for  orphans,  and  other  pub- 
lic and  charitable  purposes.  In 
December,  1830,  he  made  a  cod- 
icil reciting  the  will,  and  that  he 
had,  since  the  execution  thereof, 
purchased  certain  real  estate  "all 
which  as  well  as  any  real  estate 
that  I  may  hereafter  purchase," 
he  added,  "it  is  my  wish  and  in- 
tention to  pass  by  the  said  last 
will :  now  I  do  hereby  republish 
the  foregoing*  will  and  testament, 
dated,  &c.  and  do  confirm  the  same 
in  all  particulars."  In  June,  1831, 
he  made  another  codicil,  reciting, 
that  since  the  execution  of  the 
will,  he  had  purchased  other  real 
estate  "all  which  as  well  as  any 
real  estate  that  I  may  hereafter 
purchase,  it  is  my  intention  to 
pass  by  said  will:"  and  then  re- 
citing that  he  had  purchased  cer- 
tain land  near  Philadelphia,  he 
declared  it  to  be  his  intention  that 
the  orphan  house,  &c.  should  be 
erected  upon  this  land,  instead  of 
the  spot  directed  in  his  will,  &c. 
Between  the  date  of  this  last  codi- 
cil and  his  death,  he  purchased 
certain  other  real  estate.  The 
legacies  to  the  next  of  kin  were 
paid  by  the  executors  about  seven 
months  after  the  death  of  the  tes- 
tator. Ejectments  were  instituted 
by  the  heirs  against  the  City  of 
Philadelphia,  to  recover  the  after- 
acquired  real  estate,  which  were 
decided  in  favor  of  the  plaintiffs, 
and  possession  was  delivered  ac- 
cordingly. In  ejectment  brought 


558 


INDEX. 


by  the  city,  to  recover  back  the 
KIM ir  real  estate,  it  was  held  that 
it  was  not  a  case  in  which  tin* 
heirs  were  bound  to  elect  between 
the  after-acquired  real  estate  and 
the  legacies,  and  therefore  that 
the  city  was  not  entitled  to  re- 
recover.  City  of  Philadelphia  v. 
Datit,  490 

8.  A  testator  gave  one-third  of  his 
estate,  real  and  personal,  to  his 
wife,  one  other  third  to  his  child- 
ren, "who  may  be  living  at  the 
time  of  my  death  ; "  directing  the 
interest  to  be  paid  to  their  guar- 
dians ;  and  as  to  the  remaining 
one-third,  he  directed  that  out  of 
the  principal  of  the  one-third  of 
his  personal  estate,  which  might 
remain,  after  "the  foregoing  de- 
vises were  satisfied, "his  executors 
should  pay  certain  pecuniary  le- 
gacies, and  if  there  should  not  be 
sufficient  money  from  this  source, 
that  his  real  estate  should  be  sold 
for  the  purpose  :  and  as  to  certain 
annuities  which  he  gave,  he  di- 
rected that  they  should  be  "paid 
out  of  the  rent  of  the  third  part 
of  the  real  estate,  thereby  devised, 
or  out  of  the  interest  of  the  third 
part  of  the  personal  estate,  there- 
by devised,  which  may  remain 
after  the  payment!  of  pecuniary 
legacies ;  or  out  of  the  interest  of 
the  proceeds  of  sale  of  the  real 
estate."  In  another  part  of  tile 
will,  the  testator  appointed  a 
guardian  for  his  son  A.,  and  a 
guardian  for  his  daughter  B.  At 
the  date  of  his  will,  and  at  the 
time  of  his  death,  he  had  two 
children,  A.  and  B.,  and  his  wife 
was  pregnant  with  a  third  child, 
who  was  bom  after  his  death. 
JMd,  1.  That  the  child  in  rentre 
««  mfrt,  was  not  to  l>e  considered 
as  licing,  within  the  meaning  of 
the  will  ;  and,  consequently,  that 
under  the  act  of  1794,  the  will 
was  revoked,  so  far  as  respected 
the  share  or  proportion  of  such 
child,  of  the  estate.  2.  That  he 
took  one-third  of  two-thirds  there- 
of, which  was  to  IK-  deducted,  in 
the  first  place,  from  the  whole 
amount  ;  that  the  remainder  was 
to  IH»  divided  into  three  parts  ;  of 
which  the  widow  was  to  have  one- 
third  ;  the  two  children.  A.  and 
B.,  one-third  between  them,  and 


the  collateral  legatees,  the  remain- 
ing third.  3.  That  the  collateral 
legacies  were  to  abate  in  equal 
proportions.  M'Kniyht  v.  J!<  >  <l. 

213 

9.  A  testator  directed  his  executor 
to  convert  his  whole  estate  into 
money,  and  declared  that  he  for- 
gave certain  debts  due  to  him  by 
his  sons  A.  and  B.,  and  his  sons- 
in-law,    C.    and  D.      He  ordered 
the  residue  to  be  equally  divided 
into  six    parts ;  and    bequeathed 
one-sixth  to  a  trustee  with  direc- 
tions to  invest  the  same  and  pay 
the    interest    to    E.    (one    of  his 
daughters,  the  wife  of  F.)  during 
her  life,  and  the  principal  at  her 
death  to  her  children :    he    then 
added,    "It  is  further    my  will, 
that  whatever  debts  may  be  due 
to  me  and  owing  from  any  of  my 
sons  or  sons-in-law,  (except  those 
herein  forgiven,)   I    order  to    be 
deducted  from  the  share  of  such 
son  or  son-in-law,  whether  given 
direct  or  in  trust;  and  the  neat 
proceeds  only  after  such  deduc- 
tion be  appropriated  to  the  use  of 
such  branch  of  my  family."     At 
the  date  of  the  will,  F.,  the  son- 
in-law,  was  indebted  by  bond  and 
mortgage  to  the  testator ;    after 
whose  death,  the  land  of  F.  bound 
by  the  mortgage,  was  sold  by  the 
sheriff,  upon  an  execution  at  the 
suit  of  a  judgment  creditor  :  Held 
that  the  mortgage  given  by  F.  to 
the  testator,  was  to  l>e  deducted 
from  his  wife's  share  ;  and  conse- 
quently was  not  a  lien  upon  the 
land.     Hogeland's  Appeal,  87 

10.  A  conveyance  in  tee-simple  of  a 
lot  of  ground  is  a  revocation  of  a 
will  previously  made  by  the  gran- 
tor, so  far  as   respects  such   lot ; 

'  although  upon  such  conveyance 
the  grantor  reserves  to  himself  a 
ground-rent  in  '  fee ;  and  such 
ground-rent  does  not  pass  to  the 
devisee  of  the  lot.  Skerrett  v. 
B>ird,  246 

11.  In  ejectment  against  one  claim- 
ing under  a  conveyance  made  by 
the    ancestor    of    the    plaintiffs, 
which  they  sought  to  set  aside,  on 
the  ground  of  inadequacy  of  con- 
sideration, and   imbecility  of  the 
grantor ;  the  parties  standing  also 
in  the  relation  of  mortgagor  and 
mortgagee ;   it  was  held,   that    a 


INDEX. 


559 


will  made  by  the  grantor,  three 
years  before  the  date  of  the  deed, 
when  the  parties  stood  in  the 
same  relation;  in  which  he  de- 
vised the  same  property  to  the 
grantee  in  the  deed,  was  admis- 
sible in  evidence,  to  show  the  in- 
tentions and  dispositions  of  the 


grantor  towards  the  grantee.   Gas- 
per v.  Donaldson.  227 

And  see  CONVERSION. 

WITNESS. 

See  COSTS.     ERROR,  4.     EVIDENCE, 
2,  5,  6,  7. 


END  OF  VOL.  I. 


UNIVER. 

LOS  ANGELES 


